R v LKB

Case [2017] SASCFC 7 16 February 2017

Type to search within this case.

Supreme Court of South Australia
(Court of Criminal Appeal)
R v LKB
[2017] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)
16 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - PARTICULAR LEGISLATION - OTHER JURISDICTIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction. Appellant found guilty by a jury of persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). Where all sexual acts alleged were capable of being particularised so as to enable their being charged as specific sexual offences. Where complainant made prior inconsistent statements. Where complainant did not come up to proof on one of the particulars of the charge.
Whether a charge against s 50 can only be laid on the basis of sexual acts which are incapable of particularisation to the extent that they could not be charged as specific sexual offences under other provisions of the Act. Whether verdict unreasonable or cannot be supported having regard to the evidence.
Held per Vanstone J (Kourakis CJ and Chivell AJ agreeing): Appeal dismissed. Charge of persistent sexual exploitation of a child may contain allegations of sexual misconduct which are capable of sufficient particularisation to found specific offences, or those which are not, or a combination of both. The verdict was not unreasonable.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v N, SH [2010] SASCFC 74, not followed.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Owen v South Australia (1996) 66 SASR 251; S v The Queen (1989) 168 CLR 266; S v R (1992) 58 SASR 523; R v Chiro (2015) 123 SASR 583; R v Livingstone (2011) 109 SASR 380, considered.

R v LKB
[2017] SASCFC 7
Court of Criminal Appeal: Kourakis CJ, Vanstone J and Chivell AJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
VANSTONE J: After a trial in the District Court before judge and jury the appellant was found guilty of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He now appeals against that conviction on two grounds.
The first ground raises the question whether a charge pursuant to s 50 can only be laid on the basis of sexual acts which are incapable of particularisation to the extent that they could not be charged as specific sexual offences under other provisions of the Act. The second ground is a complaint that the verdict is unreasonable or cannot be supported having regard to the evidence.
As will be…

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 LKB

Details

AGLC: R v LKB [2017] SASCFC 7
Case: [2017] SASCFC 7
Decision Date: 16 February 2017

CaseChat Overview and Summary

The appeal concerned a conviction for persistent sexual exploitation of a child under section 50 of an unspecified Act. The prosecution alleged that the offending occurred between 22 January 2000 and 31 July 2002, involving a complainant who turned five years old on the first date. The alleged conduct included inserting fingers into the complainant's vagina on more than one occasion, licking her vagina on one occasion, attempting to insert the appellant's penis into her vagina on one occasion, and touching her vagina on one occasion, with the complainant alleging penetration in relation to the last act.

The primary legal issue before the court was the interpretation of section 50, specifically whether acts of sexual exploitation that could be particularised as separate sexual offences could still form the basis of a charge under section 50. The appellant argued that if individual incidents were sufficiently particularised to justify a charge for a separate sexual offence, they could not, for that reason, amount to acts of sexual exploitation within the meaning of section 50. A further issue was whether the verdict reached at trial was unreasonable or insupportable having regard to the evidence.

The court reasoned that a charge pursuant to section 50 could be based on allegations of sexual exploitation that were incapable of particularisation, or on allegations of sexual offences that were capable of sufficient particularisation, or a combination of both. The court held that the manner in which such allegations were charged was a matter for the Director of Public Prosecutions. Applying this interpretation, the court concluded that the verdict in the matter was not unreasonable.

Both grounds of appeal were dismissed, and the appeal was dismissed. The name of the appellant was suppressed from publication pursuant to section 69A of the Evidence Act 1929 (SA) to prevent identification of the victim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As will be seen, I have concluded that a charge pursuant to s 50 may be based upon allegations of sexual exploitation which are incapable of particularisation, or upon allegations of sexual offences which are capable of sufficient particularisation so as to be separately charged, or a combination of both. How such allegations are charged is a matter for the Director of Public Prosecutions. Furthermore, in my opinion the verdict in this matter was not unreasonable. Background The prosecution alleged that the offending occurred between 22 January 2000 and 31 July 2002. The complainant, whom I shall call “V”, turned five years of age on the first mentioned date. The alleged course of conduct was particularised in the Information in the following way: It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:(a) inserting his finger or fingers into [V’s] vagina, on more than one occasion;(b) licking [V’s] vagina, on one occasion;(c) attempting to insert his penis into [V’s] vagina on one occasion; and(d) touching [V] on the vagina on one occasion. At trial, V gave no evidence in respect of particular (c). In respect of the conduct underlying particular (d), the complainant alleged penetration.Ground 1: Interpretation of s 50 It may be accepted for the purposes of this ground that any of the alleged incidents could have been sufficiently particularised, so as to justify a charge for a separate sexual offence. The appellant argues that, for that reason, they could not amount to acts of sexual exploitation in terms of s 50. At the close of the prosecution case defence counsel submitted that there was no case to answer. It was put that since the only incidents led in support of the charges were able to be particularised, they were not acts of sexual exploitation. The trial Judge ruled against that submission and the case proceeded. I now set out the relevant parts of s 50:50—Persistent sexual exploitation of a child(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.Maximum penalty: Imprisonment for life.(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.(3)If—(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:(a) subject to this subsection, the information must allege with sufficient particularity—(i)the period during which the acts of sexual exploitation allegedly occurred; and(ii)the alleged conduct comprising the acts of sexual exploitation;(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—(i)in relation to the child who is allegedly the subject of the offence against this section; and(ii)during the period during which the person is alleged to have committed the offence against this section,must be charged in the alternative.(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.(7)In this section—prescribed age, in relation to a child, means—(a)in the case of a person who is in a position of authority in relation to the child—18 years;(b)in any other case—17 years;sexual offence means—(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or(b)an attempt to commit, or assault with intent to commit, any of those offences; or(c)a substantially similar offence against a previous enactment.…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion it cannot be said that the verdict was unreasonable. Conclusion Neither of the grounds of appeal has been made out. The appeal should be dismissed. Pursuant to s 69A of the Evidence Act 1929 (SA) the name of the appellant is suppressed from publication, as publication of it might lead to identification of the victim. CHIVELL AJ: I agree with the reasons of Vanstone J, and with the orders she proposes.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v LKB [2017] SASCFC 7

Most Recent Citation

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust; Taylor v LK Group Investments Pty Ltd [2023] NSWCA 204

Cases citing this decision · 2 of 2 shown

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust; Taylor v LK Group Investments Pty Ltd
[2023] NSWCA 204

…1992] 2 VR 217 applied; Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154; Stone v Chappel (2017) 128 SASR 165; [2017] SASCFC 7 considered. (5) As to Ground 11-16, although it was the two individual appellants who engaged in the discussions that led to the giving of the warranties, and not Yata…
Chiro v The Queen; Hamra v The Queen
[2017] HCATrans 133

…MR BLEBY: I do say that, your Honour, and that is the authority of the South Australian Supreme Court in the case of R v LBK [2017] SASCFC 7 – it is not actually on either of the lists, I think, your Honour. That is the authority in any event, your Honour. The difficulty of course - the proposition is to say well,…

View all 2 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Chiro
[2015] SASCFC 142 Para 11

…the incident from forming part of the conduct comprising the acts of sexual exploitation for the purposes of the charge: [28]-[29]. Then in R v Chiro (2015) 123 SASR 583 the Court rejected a submission that where sufficient particularisation of allegations was available, the Director should charge specific sexual offe…
R v MAS
[2013] SASCFC 122 Para 13

…to be inconsistent statements in this Court about whether a witness may be contradicted by what is said in a prosecutor’s opening (see R v MAS (2013) 118 SASR 160 at [91] and R v A (2012) 113 SASR 146 at [29]). In view of the directions given by the judge - benefiting the appellant – it is not necessary to grapple wi…
R v El Rifai
[2012] SASCFC 98 Para 13

…Court about whether a witness may be contradicted by what is said in a prosecutor’s opening (see R v MAS (2013) 118 SASR 160 at [91] and R v A (2012) 113 SASR 146 at [29]). In view of the directions given by the judge - benefiting the appellant – it is not necessary to grapple with that issue. All these matters were…
R v Livingstone
[2011] SASCFC 28 Para 11

…11] that if the conduct alleged amounted to identifiable offences, then it was appropriate to charge those offences rather than resorting to s 50. In R v Livingstone (2011) 109 SASR 380 this Court expressed the view that an ability to fully particularise an incident did not preclude the incident from forming part of the…
R v N, SH
[2010] SASCFC 74 Para 11

…Mr Mead SC, for the appellant, referred to several decisions of this Court touching, but not determining this issue. In R v N, SH [2010] SASCFC 74 the Court consisting of Sulan, Anderson and David JJ said at [11] that if the conduct alleged amounted to identifiable offences, then it was appropriate to charge those…
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2 Para 20

…ate – to which the court is entitled to have regard: Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. The purpose identified was to create an offence which facilitated the prosecution of criminal conduct which might not otherwise have answered the pro…
Owen v South Australia
[1996] SASC 5574 Para 20

…ed to the Minister’s prognostications of the way in which the provision is expected to operate – to which the court is entitled to have regard: Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. The purpose identified was to create an offence which facilitated the…
S v the Queen
[1989] HCA 66 Para 15

…articularised. A consideration of the clear purpose of the enactment of s 50 – grounded in the cases which preceded it, notably S v The Queen (1989) 168 CLR 266 and S v R (1992) 58 SASR 523 – demonstrate that, far from aiming to hamstring prosecutions for allegations of sexual offences against children by the imposit…

Legislation cited in this decision · 2

Criminal Law Consolidation Act 1935 (SA)
50 2 mentions (from Para 2)
Evidence Act 1929 (SA)
1 mention (from Para 18)