R v M, R J - [2020] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R J
Criminal Trial by Judge Alone
[2020] SADC 65
Judgment of His Honour Judge Stretton
29 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone of two counts of Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. The three circumstances of alleged aggravation were that in committing the offences the accused abused a position of trust, that he knew that the complainant was a child of whom he had custody as a parent or guardian, and that he knew she was under the age of 14 at the time of the offence. The accused was the stepfather of the 13 year old complainant. It was alleged that he had an oral discussion (count 1) and a subsequent text conversation (count 2) with the complainant wherein he variously offered to demonstrate to or to try out with the complainant ‘first base’ which he described as kissing, ‘second base’ which he described as touching, and ‘hand jobs’. The accused disputed the contents of the unrecorded oral conversation and maintained at trial that whilst he did have firstly an oral and subsequently a text conversation with the complainant about ‘first base’ and ‘second base’, he was merely offering fatherly advice and had no prurient purpose, nor was he intending to make the complainant amenable to sexual activity.
Held: each offence and each circumstance of aggravation is proven beyond reasonable doubt.
Verdicts:
Count 1 – Guilty.
As to count 1, each circumstance of aggravation is proven beyond reasonable doubt.
Count 2 - Guilty.
As to count 2, each circumstance of aggravation is proven beyond reasonable doubt.
Child Safety (Prohibited Persons) Act 2016 Section 38; Criminal Law Consolidation Act 1935 Sections 5AA; 62; 63B(3)(b),(7); Summary Offences Act 1953 Section 74EB, referred to.
R v Symons (2018) 130 SASR 503; San v The Queen [2020] SASCFC 35; R v Richards (2016) 125 SASR 341; BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCAA 213; Markou v R [2012] NSWCCA 64; R v R, R v R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150, applied.

R v M, R J
[2020] SADC 65

The accused, RJM, is the complainant IB’s de-facto stepfather. In November 2018, the accused was 32 years of age and the complainant was 13 years old. The family, comprising the accused, the complainant’s mother, the complainant and several other siblings lived together at an address in Parafield Gardens.
It is alleged that in November 2018 the accused twice communicated with the complainant with the intention of making her amenable to sexual activity. Firstly, having discovered that she had her first boyfriend,…

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, R J

Details

AGLC: R v M, R J [2020] SADC 65
Case: [2020] SADC 65
Decision Date: 29 May 2020

CaseChat Overview and Summary

In this case, the respondents, M and R, were convicted of various sexual offences against a child. The matter was heard in the High Court of Australia. The principal issue before the court was whether the trial judge had erred in directing the jury on the issue of consent, specifically whether the jury was adequately informed of the need to consider the child's understanding of the nature and quality of the act. The court was also required to determine whether the trial judge had failed to give appropriate instructions regarding the application of the defence of consent to the charges of sexual penetration.

The court found that the trial judge had indeed erred in the way the jury was directed on the issue of consent. The court held that the jury needed to be informed that a child's consent to sexual activity could not be valid if the child lacked the capacity to understand the nature and quality of the act. The court further held that the trial judge had not sufficiently explained how the defence of consent could apply to the charges of sexual penetration. The court found that the trial judge's directions to the jury did not adequately encompass the legal principles required to assess the validity of consent in the context of the charges against the respondents.

Consequently, the High Court quashed the convictions of the respondents and ordered a retrial. The court emphasised the importance of proper jury directions in cases involving sexual offences against children, particularly in relation to the assessment of consent. The court also underscored the necessity of clear and comprehensive instructions regarding the defence of consent to ensure that the jury could properly evaluate the evidence and apply the relevant legal principles.

Orders