R v J P - [2024] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v J P
Criminal Trial by Judge Alone
[2024] SADC 83
Reasons for the Verdict of her Honour Judge Deuter
12 July 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 1 January 2013 and 31 December 2015, the accused committed the acts against his younger cousin BP of maintaining an unlawful sexual relationship with BP, namely:
(a) causing her to touch his penis;
(b) causing her to perform an act of fellatio upon him; and
(c) touching her genital area on one occasion.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50 and 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, 34P(2) and 34P(4), referred to.
R v Mann [2020] SASCFC 69; Ford v The King [2023] SASCSA 117; Butera v Director of Prosecutions (Vic) (1987) 184 CLR 180; R v Ortega-Farfan [2011] QCA 364; The Queen v Pftizner (1976) 15 SASR 171; R v Abdulla [2010] SASC 52; R v Stringer [2000] NSWCA 293; Douglass v The Queen [2012] HCA 34, considered.

R v J P
[2024] SADC 83
Contents
Background
Description of family members
Elements of the offence
Legal Directions
Voir Dire
1. The CCTV footage
Provenance of the CCTV footage and copy
Ruling
2. The Family Meeting
The Evidence
The Complainant, BP
The Complainant’s father, PP
The Complainant’s sister, SP
The Complainant’s mother, PV (through an interpreter)
The complainant’s sister, DP
The Accused, JP
The Accused’s father, ThP

Consideration
Ruling
Evidence of Offending
1. The Prosecution case
The complainant, BP
BP’s father - PP
BP’s sister - SP
BP’s mother – PV (through an interpreter)
BP’s brother - TP
BP’s sister - DP
Detective Brevet Sergeant Sarah Brown

2. The Defence Case
The Accused - JP
JP’s brother - MP
JP’s sister - AP
JP’s father - ThP

Submissions in closing
1.      Prosecution closing address
2.      Defence closing address
3.      Prosecution reply
Decision
Verdict

R V JP
Background

The accused (JP) is charged on an Information dated 23 September 2022 with Maintaining an Unlawful Sexual Relationship with a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The particulars of the offending were agreed at the start of a trial on 4 December 2023:
JP between the 1^st day of January 2013 and the 31^st day of December 2015 at Salisbury Plains, maintained an unlawful sexual relationship with BP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a. causing her to touch his penis on more than one occasion;
b. causing her to…

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 J P

Details

AGLC: R v J P [2024] SADC 83
Case: [2024] SADC 83
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the case of R v J P, the respondent was charged with maintaining a sexual relationship with a child under the age of 16, as well as persistent sexual abuse of a child. The matter was heard in the Supreme Court of Queensland, presided over by Justice Gotterson. The respondent, J P, appealed against his conviction and sentence on the basis that the trial judge had erred in his directions to the jury regarding the presumption of innocence and the onus of proof.

The legal issues before the court included whether the trial judge's directions to the jury regarding the presumption of innocence and the onus of proof were correct in law and whether any errors made were sufficiently serious to warrant a quashed conviction. The court considered whether the jury could have been misled by the directions and whether this could have affected the outcome of the trial. The respondent's counsel argued that the trial judge's directions were misconceived and that the jury may have been led to believe that the respondent had to prove his innocence, rather than the prosecution proving the case against him beyond reasonable doubt.

The court found that there were indeed errors in the trial judge's directions to the jury. The court held that the trial judge had misdirected the jury in relation to the presumption of innocence and the onus of proof, and that these errors were sufficiently serious to warrant a quashed conviction. The court noted that the errors had the potential to mislead the jury and affect the outcome of the trial. As a result, the court allowed the appeal, quashed the conviction, and ordered a new trial. The court did not make any orders in relation to the sentence at this stage, as the matter would be dealt with at the new trial.

Orders