R v IDH - [2020] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v IDH
Criminal Trial by Judge Alone
[2020] SADC 139
Reasons for the Verdict of His Honour Judge Muscat
30 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Defendant biological father of the complainant - offending alleged to have occurred between 1975 and possibly into early 1977 - complainant aged seven to nine years - significant forensic disadvantage to the accused - no independent support for the complainant's evidence - defendant gave evidence denying the charge and called evidence of good character.
Verdict: Not Guilty

R v IDH
[2020] SADC 139
Introduction

IDH (‘the defendant’) is charged on an Information dated 4 February 2020 with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
IDH between the 27th day of September 1974 and the 28th day of September 1980 at Bellevue Heights, maintained an unlawful sexual relationship with A, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, namely:
(a)pushing his penis against her genital area on one or more occasions;
(b)performing an act of cunnilingus upon her on more than one occasion;
(c)inserting one or more fingers into her vagina on more than one occasion;
(d)touching her vagina on more than one occasion; and
(e)pushing his penis against her mouth on one or more occasions.
It is alleged that the defendant committed the offence against his biological daughter during periods of fortnightly parental access, following the breakdown of his marriage. The sexual abuse is alleged to have occurred at the defendant’s home, the former matrimonial home.
The prosecution relied solely on the evidence of A to prove the offence against the defendant.
On the evidence of A, over the period of time she alleged she was being sexually abused, the defendant was aged 38 to 40 years and she was aged seven and eight and even possibly nine years old.
Application for trial by judge alone
The defendant was originally tried before a jury in February 2020 and again in August 2020. On each occasion, I was the trial judge and on each occasion the jury had to be discharged.[1]
[1] It is unnecessary to detail the nature of the reasons behind the discharge of each jury.
Following the most recent discharge of the jury on 20 August 2020, the defendant brought an application for trial by judge alone. As all of the evidence had been presented and the closing addresses completed before the jury was discharged on 20 August 2020, it was requested that I should decide the verdict. The application and such course was not opposed by the prosecution.
I allowed the defendant’s application for trial by judge alone and also agreed that I would decide the verdict.
All of the evidence and the exhibits from the second trial…

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 IDH

Details

AGLC: R v IDH [2020] SADC 139
Case: [2020] SADC 139
Decision Date: 30 September 2020

CaseChat Overview and Summary

The court heard a case against the defendant, who was alleged to have engaged in an unlawful relationship with a child, his biological daughter, between 1975 and possibly into early 1977. The complainant was aged between seven and nine years during the time of the alleged offending. The defendant faced significant challenges, as there was no independent support for the complainant's evidence. Furthermore, the defendant denied the charge and called evidence of good character in his defense.

The central legal issues before the court involved the credibility of the complainant's evidence, the lack of corroborating evidence, and the defendant's denial of the charges. The court had to consider whether the complainant's testimony was sufficiently reliable to convict the defendant in the absence of any independent evidence. Additionally, the court needed to assess the impact of the defendant's good character evidence on the credibility of the complainant's allegations.

In delivering the judgment, the court thoroughly examined the complainant's evidence and found it to be inherently improbable and lacking in any independent support. The absence of corroborating evidence further undermined the complainant's testimony. Given the significant forensic disadvantage faced by the defendant, the court concluded that the complainant's evidence was not sufficiently reliable to convict the defendant. Consequently, the court acquitted the defendant of the charges.

The court's final orders were to acquit the defendant of all charges, reflecting the court's determination that the evidence presented was insufficient to establish the defendant's guilt beyond reasonable doubt. The court emphasised the importance of corroboration and the inherent unreliability of the complainant's evidence in reaching its decision.

Orders