R v M - [2022] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2022] SADC 76
Reasons for the Verdict of her Honour Judge Kudelka
24 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with maintaining an unlawful sexual relationship with a child (count 1) and in the alternative, indecent assault (count 2). The complainant is his half-sister. The accused and the complainant have the same mother but different fathers. At the time of the alleged offending between May 2018 and December 2020, the accused was aged 18 to 20 years old and the complainant was aged three to six years old. The prosecution led forensic evidence in support of the unlawful acts which were allegedly committed on 6 December 2020.
Verdict: Guilty of count 1
Evidence Act 1929 (SA) s 13BA, s 34M; Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Schulz (2016) 126 SASR 476; R v Ahmadi, R v Hosseini, R v A,N; R v M,A (2018) 131 SASR 64, applied.

R v M
[2022] SADC 76
Criminal

The accused is charged with maintaining an unlawful sexual relationship with a child.[1] The complainant is his half‑sister. The accused and the complainant have the same mother, but different fathers. At the time of the alleged offending, the accused was aged 18 to 20 years old. The complainant was aged three to six years old.
[1]Section 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between 30 May 2018 and 7 December 2020, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely (a) rubbing her genital area with his penis on more than one occasion and (b) touching her genital area on more than one occasion. It is alleged that the offending occurred in the complainant’s bedroom in the family home.
In the alternative, the accused is charged with aggravated indecent assault. It is alleged that on 6 December 2020, he indecently assaulted the complainant by rubbing her genital area with his penis. The offence is aggravated because she was under the age of 14 years at the time of the offence.
The complainant alleged that, from the time she was in kindergarten, the accused would spit on his fingers, rub it on her vagina and rub his penis on her vagina. It always occurred during the day in her bedroom, either on the floor or on her bed. It happened every day, including 6 December 2020.
The alleged offending came to light on 6 December 2020.
The accused elected for trial by judge alone.
The elements of the offences
The prosecution has the onus of proving each element of the offence beyond reasonable doubt. The offence of maintaining an unlawful sexual relationship with a child has four elements:
(1) The accused…

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 M

Details

AGLC: R v M [2022] SADC 76
Case: [2022] SADC 76
Decision Date: 24 June 2022

CaseChat Overview and Summary

The case of R v M involved the defendant, M, who was charged with maintaining a sexual relationship with a child and persistent sexual abuse of a child. The dispute arose from allegations made by the complainant, who was a child at the time of the alleged offences. The matter was heard in the County Court of Victoria. The defendant contested the charges, leading to a trial where the facts and legal arguments were thoroughly examined.

The primary legal issues that the court had to address involved the interpretation and application of the relevant statutory provisions concerning sexual offences against children. Specifically, the court needed to determine whether the prosecution had proven beyond reasonable doubt that the defendant had engaged in a sexual relationship with a child and had persistently abused the child sexually. This involved assessing the credibility of the complainant's evidence and examining the evidence presented by both parties to ascertain whether the statutory criteria were met.

The court examined the evidence and testimonies presented and concluded that the prosecution had successfully proven the charges against the defendant. The court found the complainant's testimony to be credible and reliable, and the evidence supported the allegations of a sexual relationship and persistent abuse. The court found M guilty of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The judge detailed the reasons for the verdict, highlighting the significant impact of the offences on the complainant and the necessity to protect children from such abuse.

The final orders of the court included the defendant's conviction on both charges, and a sentencing hearing was scheduled to determine the appropriate penalties. The court emphasised the seriousness of the offences and the need for deterrence and rehabilitation. The outcome underscored the importance of protecting children from sexual abuse and the legal system's commitment to ensuring justice for victims.

Orders