R v M, DV

[2019] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, DV

[2019] SASCFC 59

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)

30 May 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

The appellant was convicted of two counts of maintaining an unlawful sexual relationship with a child in respect of two of his daughters and two counts of indecent assault in respect of his third daughter. He was acquitted of a further count of indecent assault in respect of his niece. He was sentenced to imprisonment for 16 years with a non-parole period of 10 years.

The appellant appeals against his conviction on four grounds:

1. The Judge erred in not directing the jury that it is an independent element of the offence of maintaining an unlawful sexual relationship that there was a sexual relationship between the defendant and complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant.

2. The fair trial of the appellant miscarried as a result of directions as to cross-admissibility of evidence.

3. The fair trial of the appellant miscarried as a result of the joinder of the five counts.

4. The Judge failed to direct the jury as to the use it could make of a doubt about the evidence of one complainant in relation to the evidence of the other complainants.

The appellant seeks permission to appeal against his sentence on three grounds:

1. The sentence was manifestly excessive.

2. The Judge failed to mitigate the sentence on account of his age, medical conditions and the potential burden of imprisonment.

3. The Judge erred in failing to have regard to the extensive delay in relation to the appellant’s lack of offending and his rehabilitation during that period.

Held by the Court (dismissing the appeal against conviction):

1. On its proper construction it is not an element of the offence of maintaining an unlawful sexual relationship created by section 50 of the Criminal Law Consolidation Act 1935 that there was a sexual relationship between the defendant and complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant:

(a) (per Kourakis CJ and Lovell J) It is an element of the offence that there was a relationship (but not necessarily a sexual relationship) between the defendant and complainant in the course of which the defendant engaged in the unlawful sexual acts (at [10] per Kourakis CJ and [183]-[184] per Lovell J).

(b)…