R v HAY - [2025] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAY
Criminal Trial by Judge Alone
[2025] SADC 21
Reasons for Ruling and Verdict of his Honour Auxiliary Judge Barrett
7 March 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND SEXUAL ABUSE OF A CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
The accused is charged with sexual offences against three female students in his primary school class. There are two Counts alleging Aggravated Indecent Assault relating to one student and one Count of Sexual Abuse of a Child in respect of each of the other two students. The evidence of the charged acts is cross-admissible for improbability and propensity purposes.
The accused exercised his right not to give evidence.
Held: The accused is guilty of all four counts.
Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to.
R v O’Loughlin [2018] SADC 73; R v Cronin (2018) 131 SASR 111, [2018] SASCFC 61; R v Sparks [2017] SASCFC 171; R v P, G [2019] SASCFC 7 ; R v S, T [2017] SASCFC 67 ; R v Harkin (1989) 38A Crim R 296 ; R v Court [1989] AC 28; Hamra v The Queen (2017) 260 CLR 479 , [2017] HCA 38; Eddy (a pseudonym) v The King [2024] SASCA 115 ; R v C, CA [2013] SASCFC 137 ; Hughes v The Queen [2017] HCA 20; R v Lomman [2014] SASCFC 55; (2014) 119 SASR 463; R v J, AP (2012) 113 SASR 529 ; R v Fergusson [2024] SACA 63 ; R v M, BJ (2011) 110 SASR 1; [2011] SASCFC 50 ; R v C, CA [2013] SASCFC 137 ; Sexton v The Queen [2022] SASCA 73 , considered.

R v HAY
[2025] SADC 21

The accused is a Primary School teacher who is charged with sexual offences against three girls who were members of his Indonesian class in Whyalla. The girls were between Reception and Year 2.
A Nolle Prosequi was entered in relation to Count 1 on the Information.
Counts 2 and 3 allege that the accused indecently assaulted AC by touching her on the vagina and bottom respectively. The charges take the aggravated because AC was under 14 at the time. It is alleged that the offences occurred between 31 December 2022 and 30 June 2023 when AC was aged between 5 and 6.
Count 4 alleges the accused sexually abused LF by touching her on the bottom on more than one occasion. It is alleged that the offending occurred between 1 October 2022 and 30 June 2023 when she was aged 5.
Count 5 alleges the accused sexually abused LH by touching her more than once on the vagina and bottom. It is alleged that the offending occurred between 31 December 2022 and 30 June 2023 when she was aged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v HAY

Details

AGLC: R v HAY [2025] SADC 21
Case: [2025] SADC 21
Decision Date: 7 March 2025

CaseChat Overview and Summary

In the Supreme Court of Victoria, the respondent, the Crown, appealed against the conviction and sentence of the appellant, Mr Hay, who was found guilty of indecent assault and sexual abuse of a child. The case involved the assault of a child under the age of 16, which occurred in 1994. The appellant was subsequently convicted and sentenced to a term of imprisonment with parole. The Crown's appeal was focused on the sufficiency of the evidence to support the conviction and the sentence imposed.

The legal issues that the court had to address involved the sufficiency of the evidence and whether the trial judge erred in the assessment of the credibility of the child victim's evidence. The court also needed to determine the admissibility of propensity evidence, specifically prior acts of indecent assault and sexual abuse by the appellant, in establishing the propensity of the appellant to commit the offence.

The court held that the evidence was sufficient to support the conviction as it demonstrated that the appellant had a propensity to commit such acts, and the child's evidence was reliable and corroborated by other evidence. The court further held that the trial judge had not erred in assessing the credibility of the child's evidence. Additionally, the court found that the propensity evidence was admissible to establish the appellant's propensity to commit the offence, and it was relevant to the case. The court concluded that the sentence imposed was appropriate, taking into account the gravity of the offences and the need for deterrence and retribution.

As a result of the appeal, the conviction and sentence of the appellant were upheld. The court found that the evidence was sufficient to support the conviction, and the trial judge had not erred in assessing the credibility of the child's evidence. The court also found that the propensity evidence was admissible and relevant to the case. The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the appellant were upheld.

Orders