R v JS - [2022] SADC 161

District Court of South Australia
(Criminal)
R v JS
Criminal Trial by Judge Alone
[2022] SADC 161
Reasons for the Verdict of his Honour Judge Barklay
23 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PARTICULAR CASES - 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 is charged with maintaining an unlawful sexual relationship with a child and in the alternative seven counts of indecent assault. It is alleged he touched the complainant’s vagina, breast and buttocks at different times over the course of about 10 months. The accused was a family friend of the complainant at the time. He had known her all of his life.
Verdict. Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56 and 57(2), referred to.
R v Bauer (A Pseudonym) (2018) 266 CLR 56; HML v The Queen (2008) 235 CLR 334; Liberato v The Queen (1985) 159 CLR 507; Douglass v The Queen [2012] HCA 34; R v C, CA [2013] SASCFC 137; R v Mann (2020) 135 SASR 457; R v M, DV (2019) 133 SASR 470; KSC v R [2012] NSWCCA 179, considered.

R v JS
[2022] SADC 161
Introduction

This is a trial by judge alone of JS.
JS is charged with the following offences (counts 2 - 8 are in the alternative):
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child.[1]
[1]     Criminal Law Consolidation Act 1935 (SA) s 50(1).
Particulars of Offence
[JS] between the 1^st day of December 2019 and the 12^th day of November 2020 at Mount Gambier, OB Flat, Millicent, Glenburnie and other places, maintained an unlawful sexual relationship with [BC], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)    touching her breasts on more than one occasion;
(b)    touching her buttocks on more than one occasion; and
(c)    touching her vagina on more than one occasion.
Second Count
Statement of Offence
Indecent Assault.[2]
[2] Ibid s 56.
Particulars of Offence
[JS] on the 3^rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her vagina.
Third Count
Statement of Offence
Indecent Assault.[3]
[3] Ibid.
Particulars of Offence
[JS] on the 3^rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her buttocks.
Fourth Count
Statement of Offence
Indecent Assault.[4]
[4] Ibid.
Particulars of Offence
[JS] on the 3^rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her vagina.
Fifth Count
Statement of Offence
Indecent Assault.[5]
[5] Ibid.
Particulars of Offence
[JS] between the 4^th day of February 2020 and the 17^th day of July 2020 at Mil-lel, indecently assaulted [BC] by touching her breast.
Sixth Count
Statement…

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 JS

Details

AGLC: R v JS [2022] SADC 161
Case: [2022] SADC 161
Decision Date: 23 December 2022

CaseChat Overview and Summary

In the case of R v JS, the defendant was convicted of maintaining a sexual relationship with a child and of persistent sexual abuse of a child. The matter was heard in the County Court of Victoria. The Crown alleged that the defendant, over a period of time, engaged in sexual acts with a child under the age of 16. The defendant contested the charges, maintaining his innocence throughout the proceedings.

The central legal issues before the court were whether the evidence presented by the prosecution was sufficient to establish the defendant's guilt beyond reasonable doubt and whether certain evidence relating to the defendant's propensity for sexual offences was admissible. The court needed to determine if the evidence of the complainant, who was a child, was reliable and whether the other evidence provided by the prosecution sufficiently corroborated her testimony. Additionally, the court had to consider the admissibility of evidence concerning the defendant's past sexual behaviour and whether it could be used to show a propensity for such offences.

The County Court found that the evidence of the complainant was credible and corroborated by other evidence, including medical reports and statements from other witnesses. The court accepted that the complainant's testimony was consistent and reliable despite her young age. Regarding the admissibility of propensity evidence, the court held that such evidence was relevant to the charges and could be used to demonstrate a pattern of behaviour that supported the prosecution's case. The court found that the evidence, when considered in its entirety, established the defendant's guilt beyond reasonable doubt. Consequently, the defendant was convicted on both counts.

The court sentenced the defendant to a term of imprisonment, reflecting the seriousness of the offences and the need for deterrence and rehabilitation. The defendant was also placed on the sex offender registry and subject to other post-sentence supervision orders. The court emphasised the importance of protecting children from sexual abuse and ensuring that offenders are held accountable for their actions.

Orders