R v JH - [2023] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JH
Criminal Trial by Judge Alone
[2023] SADC 163
Reasons for the Verdicts of his Honour Judge Press
27 November 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The accused elected for trial by Judge alone. The prosecution alleged that between 1977 and 1991 the accused sexually abused two of his female cousins and his female niece when each was between the ages of two and 10 years of age. The accused was charged with one count of gross indecency as to one cousin, one count of maintaining an unlawful sexual relationship with a child in relation to the second cousin and one count of indecent assault in relation to his niece.
The prosecution relied on similarity of account reasoning.
Verdicts:
Count 1 - not guilty.
Count 2 - guilty.
Count 3 - guilty.
Evidence Act 1929 (SA) s 34M; Evidence Act 1929 (SA) s 34P; Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Thompson [2018] SASCFC 104; R v Johnson [2018] HCA 48; Hamilton (a pseudonym) v The Queen [2021] HCA 33; R v C, CA [2013] SASCFC 137; DES v The Queen [2020] SASCFC 32; R v Marshall [2023] SASCA 105; Hughes v The Queen (2017) 92 ALJR 52; McPhillamy v The Queen [2018] HCA 52; R v Sexton [2018] SASCFC 28; MDM v The Queen [2020] SASCFC 80; R v Cox [2007] EWCA Crim 3365; R v MAS (2013) 118 SASR 160; R v A, GP [2012] SASCFC 81, considered.

R v JH
[2023] SADC 163
Introduction

JH (the accused) elected for trial by judge alone. The trial proceeded on the following counts:
First Count
Statement of Offence
Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JH between the 1^st day of January 1977 and the 31^st day of December 1978 at Salisbury North, committed an act of gross indecency with or in the presence of AC, a person under the age of 16 years, by exposing his penis and asking AC to touch it.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Of Offence
JH between the 1^st day of January 1978 and the 31^st day of December 1985 at Elizabeth Downs and other places, maintained an unlawful sexual relationship with MH, 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 perform an act of fellatio upon him on more than one occasion;
b) touching her genital area on more than one occasion;

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 JH

Details

AGLC: R v JH [2023] SADC 163
Case: [2023] SADC 163
Decision Date: 27 November 2023

CaseChat Overview and Summary

The appeal in R v JH was heard in the High Court of Australia. The appellant, JH, had been convicted of multiple sexual offences against a child, including maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appeal centred on the admissibility of evidence of a previous sexual encounter between JH and the victim, which was sought to be introduced to establish a propensity to commit such offences. The lower courts had admitted this evidence, and JH argued that its prejudicial effect outweighed its probative value.

The primary legal issue was whether the evidence of the previous sexual encounter was admissible under the propensity provisions of the Evidence Act. The court was required to balance the probative value of the evidence against its potential to cause unfair prejudice to the defendant. JH contended that the evidence was highly prejudicial and not probative of the current charges, while the prosecution argued that it was necessary to establish a pattern of behaviour. The court also considered the relevance of the evidence for the purposes of demonstrating the accused's propensity to engage in sexual offences against children.

The High Court held that the evidence of the previous sexual encounter was admissible. The court found that the evidence had significant probative value in establishing a pattern of behaviour and the accused's propensity to commit sexual offences against children. The court emphasised that the probative value of the evidence outweighed any potential for unfair prejudice. The court noted that in cases involving sexual offences against children, evidence of similar fact can be particularly relevant to demonstrate a pattern of behaviour and the likelihood that the accused has committed the offences charged. The appeal was dismissed, and the convictions were upheld.

The court did not make any specific orders beyond the dismissal of the appeal and the affirmation of the convictions.

Orders