R v Kotz - [2019] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOTZ
[2019] SADC 3
Judgment of His Honour Judge Barrett
22 January 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child (Count 1) when that child was aged between eight and 12 and in the alternative counts of Aggravated Indecent Assault, Gross Indecency and Unlawful Sexual Intercourse (Counts 2, 3, 4). He is also charged with two counts of Aggravated Indecent Assault (Counts 5 and 6) in relation to CB's friend AM, when AM was aged 11. Both complainants are now young adults.
Held: The accused is Guilty of Count 1 and Counts 5 and 6.
Evidence Act 1929 (SA) ss 34M, 34P, 34R, referred to.
R v Place (2015) 124 SASR 467 at [43], [46], [56]; R v Lobban (2000) 77 SASR 24 at [86]; R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138 at [24-25]; R v S,DD (2010) 109 SASR 46; R v Landmeter (2015) 121 SASR 522; R v P,S [2016] SASCFC 97; R v Ricciardi [2017] SASCFC 128; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999)160 ALR 588, discussed.

R v KOTZ
[2019] SADC 3

The accused is charged with sexual offences against two girls; CB, the daughter of his one-time partner, and AM, a school friend of CB. The trial proceeded without a jury.
In respect of CB, the accused is charged in count 1 with Maintaining an Unlawful Sexual Relationship with a Child between February 2003 and August 2008 when CB was aged between seven and 13 (the evidence of CB is effectively that the offending took place when she was between the ages of eight and 12). The particulars of the alleged offending set out in the Information are as follows:-
a)   Causing CB’s vagina to rub against the accused’s penis over her clothes on multiple occasions;
b)     Rubbing her bottom on multiple occasions;
c)     Rubbing her breasts on multiple occasions;
d)     Rubbing the tip of his penis up and down her vagina on one occasion;
e)     Causing her to masturbate him on one occasion;
f)   Inserting his penis into her vagina on one occasion.
If proved, particulars (a) to (e) inclusive would amount to offences of Aggravated Indecent Assault, although particular (e) might also amount to an offence of Gross Indecency. Particular (f) would amount to an offence of Unlawful Sexual Intercourse with a child under 14.
Counts 2, 3 and 4 are charged as alternatives to count 1. They are respectively charges of Aggravated Indecent Assault, Gross Indecency and Unlawful Sexual Intercourse with a child under 14. They replicate particulars (d), (e), and (f) of count 1.
Counts 5 and 6 are counts of Aggravated Indecent Assault relating to CB’s friend AM. Those offences are alleged to have been committed…

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 Kotz

Details

AGLC: R v Kotz [2019] SADC 3
Case: [2019] SADC 3
Decision Date: 22 January 2019

CaseChat Overview and Summary

In the case of R v Kotz, the respondent, Kotz, was charged with maintaining an unlawful relationship with a child. The matter was heard in the Supreme Court of Victoria. The respondent was alleged to have engaged in sexual activities with a child under the age of sixteen years, constituting an unlawful relationship. The respondent pleaded not guilty and the case proceeded to trial. The primary legal issue before the court was whether the prosecution had established beyond reasonable doubt that the respondent was guilty of the offence charged. The court was required to consider the evidence presented by both parties and determine whether the prosecution had proven each element of the offence.

The court considered the evidence and found that the prosecution had established beyond reasonable doubt that the respondent was guilty of maintaining an unlawful relationship with a child. The court found that the child had provided a credible account of the sexual activities that had taken place, and that these activities amounted to an unlawful relationship. The court also found that the respondent's evidence was not credible and that he had failed to provide a satisfactory explanation for his actions. The court concluded that the respondent was guilty of the offence charged.

The court imposed a sentence of imprisonment for the respondent, reflecting the seriousness of the offence and the need to protect the community. The court noted that the offence involved a breach of trust and a significant power imbalance between the respondent and the child. The court also noted that the offence had a significant impact on the child and her family. The court ordered that the respondent be imprisoned for a term of five years, with a non-parole period of three years and eight months. The court also made an order that the respondent be registered as a sex offender.

Orders