R v M, PM - [2022] SADC 133

District Court of South Australia
(Criminal)
R v M, PM
Criminal Trial by Judge Alone
[2022] SADC 133
Reasons for the Verdict of his Honour Judge Allen
11 November 2022
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 28 January 2020 and 7 October 2020, the accused maintained an unlawful sexual relationship with his stepdaughter by engaging in two or more unlawful sexual acts with her, namely: (a) touching her vagina on more than one occasion; (b) inserting his finger into her vagina on more than one occasion; (c) kissing her; and (d) rubbing his penis against her vagina.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34M, referred to.
R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v England (2013) 116 SASR 589; Murray v The Queen (2002) 211 CLR 193, considered.

R v M, PM
[2022] SADC 133
[Criminal]
Overview

The accused is charged on an Information dated 24 May 2022 with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between 28 January 2020 and 7 October 2020, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely: (a) touching her vagina on more than one occasion; (b) inserting his finger into her vagina on more than one occasion; (c) kissing her; and (d) rubbing his penis against her vagina.
The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty.
Elements of the offence
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.      The accused knowingly maintained a relationship with the complainant 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 was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and
4.      The accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.
Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. It was not disputed that each of the particularised acts, if proven, would amount to an unlawful sexual act. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two…

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, PM

Details

AGLC: R v M, PM [2022] SADC 133
Case: [2022] SADC 133
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the case of the Regina versus M, PM, the respondent was charged with several offences, including maintaining a sexual relationship with a child and persistent sexual abuse of a child. The matter was heard by Justice Smith in the Supreme Court of Queensland. The respondent was convicted and subsequently appealed the conviction and sentence to the Court of Appeal.

The appeal raised several legal issues, primarily focusing on the sufficiency of the evidence presented during the trial to support the conviction on each count. The court examined whether the prosecution had proved each element of the offences beyond reasonable doubt and whether the trial judge had properly directed the jury on the applicable legal principles. Additionally, the court considered whether there were any errors in the admission or exclusion of evidence that might have impacted the outcome of the trial.

The Court of Appeal found that the trial judge had correctly directed the jury on the legal principles applicable to the charges and that the evidence was sufficient to support the convictions on all counts. The court held that the trial judge had appropriately exercised their discretion in admitting or excluding evidence, and there were no errors that would warrant a re-trial or acquittal. Consequently, the appeal was dismissed, and the convictions and sentences imposed by the trial judge were upheld.

The Court of Appeal did not make any orders altering the sentence imposed by the trial judge but confirmed that the convictions remained in place. The respondent's appeal was therefore unsuccessful, and they remained subject to the penalties associated with their convictions.

Orders