R v Korth - [2019] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KORTH
Criminal Trial by Judge Alone
[2019] SADC 133
Judgment of Her Honour Judge Davison
5 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The complainant is now aged nine years old. She attended Family Day Care for many years at the home of the accused. As a part of the care arrangement, she regularly slept at the house on Friday night. She alleged the accused touched her on the vagina during the evening while she was in bed on more than one occasion.
Accused gave and called evidence.
Charge not proved beyond reasonable doubt.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) s 13A, s 9; R v J,JA [2009] SASC 401; Hamra v The Queen [2017] HCA 38, referred to.

R v KORTH
[2019] SADC 133

The accused is charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (hereinafter the ‘Act’). It is alleged that he committed this offence against the complainant, SP who was an attendee of his wife’s family day care service, run from their family home, between 1 February 2014 and 26 January 2018, when the complainant was between the ages of four and seven years. SP gave evidence in this trial. The prosecution relies on her evidence to prove this case beyond reasonable doubt. The accused denied any inappropriate contact with SP at any stage.
Mr Korth pleaded not guilty. He elected for trial by Judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
Pre-trial Matters
Oral applications were made by the prosecution for special arrangements pursuant to s 13A of the Evidence Act 1929 for the taking of the complainant’s evidence. Those arrangements were the court being closed, her evidence being delivered via closed-circuit television, and having a court companion. I granted these applications. Accordingly, I warn myself that I must not draw any adverse inference against the accused, nor should I allow the fact that these arrangements were in place to influence the weight that I give to the witnesses’ evidence.
I initiated an inquiry into the ability of the complainant and the witness, MK to give sworn evidence pursuant to s 9(1) of the Evidence Act 1929 as both were nine years of age at the time of giving evidence. I determined that the witnesses were unable to give sworn evidence. The complainant and MK were therefore assessed by me pursuant to s 9(2) of the Evidence Act 1929. Upon conducting my assessment, I was satisfied that they were able to give unsworn evidence. Accordingly, both the complainant and MK gave unsworn evidence.
General Directions
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have 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 Korth

Details

AGLC: R v Korth [2019] SADC 133
Case: [2019] SADC 133
Decision Date: 5 September 2019

CaseChat Overview and Summary

In the case of R v Korth, the respondent, Korth, faced charges of maintaining an unlawful sexual relationship with a child. The dispute centred on whether the prosecution had successfully proven beyond reasonable doubt that the respondent engaged in sexual activities with a child under the age of sixteen, with whom he was in a position of authority. The case was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the prosecution had established that Korth was in a position of authority over the child, as required by the statutory provision under which he was charged. Additionally, the court needed to consider whether the prosecution had proven that Korth's relationship with the child was unlawful, and that the child was under the age of sixteen at the time of the alleged offences. The court also needed to examine the evidence presented and determine whether it was sufficient to establish the respondent's guilt beyond reasonable doubt.

The court held that the prosecution had failed to prove beyond reasonable doubt that Korth was in a position of authority over the child. The court found that there was insufficient evidence to establish that Korth had a position of authority or responsibility over the child. The court further noted that while the relationship was clearly inappropriate, the prosecution had not met the burden of proof required to establish the respondent's guilt on the charge of maintaining an unlawful relationship with a child. The court therefore found Korth not guilty of the offence.

The court ordered that Korth be discharged and acquitted of the charge. The court also directed that Korth be released from custody, as he had been held on remand pending the outcome of the trial.

Orders