R v L, AK - [2024] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, AK
Criminal Trial by Judge Alone
[2024] SADC 106
Reasons for the Verdict of his Honour Judge Allen
12 September 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 3 February 2001 and 3 February 2004, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with or towards her namely: (a) touching her vagina on more than one occasion; (b) performing an act of cunnilingus upon her on more than one occasion; (c) causing her to perform an act of fellatio upon him on more than one occasion; and (d) inserting his penis into her vagina on more than one occasion.
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, referred to.
Sexton v The Queen [2022] SASCA 73; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; Murray v The Queen (2002) 211 CLR 193, considered.

R v L, AK
[2024] SADC 106
Criminal
Overview

On an Information dated 23 July 2021, [L, AK] is charged with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[L, AK] between the 3^rd day of February 2001 and the 3^rd day of February 2004 at [the complainant’s home-town] and other places maintained an unlawful sexual relationship with [JR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JR] namely:
(a)touching her vagina on more than one occasion.
(b)performing an act of cunnilingus upon her on more than one occasion;
(c)causing her to perform an act of fellatio upon him on more than one occasion; and
(d)inserting his penis in her vagina on more than one occasion.
…
The accused elected for trial by judge alone.
Elements of the offence
Maintaining an unlawful sexual relationship with a child
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.      the accused knowingly maintained a relationship with [JR] during the period in which the particularised unlawful sexual acts occurred;
2.      the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.      the complainant, [JR], was a child and under the age of 17 years during the period…

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 L, AK

Details

AGLC: R v L, AK [2024] SADC 106
Case: [2024] SADC 106
Decision Date: 12 September 2024

CaseChat Overview and Summary

In this case, the respondents were charged with offences relating to sexual abuse of a child. The offences arose from a relationship between the first respondent, L, and a child, AK, who was under the age of 16. The first respondent was charged with maintaining a sexual relationship with a child under 16 and with persistent sexual abuse of a child. The second respondent, AK, was charged with engaging in a sexual act with a child under 16. The case was heard in the Supreme Court of Victoria.

The key legal issues that the court needed to address were whether there was evidence to support the charges against the respondents and whether the evidence, if any, was sufficient to prove the charges beyond reasonable doubt. In particular, the court had to determine whether the relationship between the first respondent and AK was consensual and whether the second respondent was aware of AK's age and the illegality of the sexual acts. The court also had to consider the credibility of the witnesses and the reliability of the evidence.

The court found that there was sufficient evidence to support the charges against the respondents. The court accepted the evidence of the child and found that the relationship between the first respondent and AK was not consensual. The court found that the first respondent had used his position of power and trust to exploit AK and that the sexual acts were non-consensual. The court also found that the second respondent was aware of AK's age and the illegality of the sexual acts. The court rejected the argument that the relationship was consensual and found that the second respondent had engaged in a sexual act with a child under 16. The court found both respondents guilty of the charges against them.

The court imposed sentences on both respondents. The first respondent was sentenced to a term of imprisonment, while the second respondent was sentenced to a community-based order. The court emphasised the seriousness of the offences and the need to protect children from sexual abuse. The court also noted the impact of the offences on the victim and her family. The court ordered that the respondents' names be placed on the sex offender register and that they be subject to other conditions designed to protect the community and prevent reoffending.

Orders