R v M, RS (No 3) - [2017] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RS (No 3)
Criminal Trial by Judge Alone
[2017] SADC 24
Reasons for the Verdict of His Honour Judge Slattery
17 March 2017
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused was charged with one count of persistent sexual exploitation of a child.
Verdict: Guilty.
Criminal Law Consolidation Act s 49, s 50(1), s 50(7), s 50(8)(b); Juries Act s 7; Evidence Act s 34M; District Court (Criminal) Rules R 49; Cross on Evidence 8th Australian Ed, the Honourable J.D. Heydon, referred to.
R v Landmeter (2015) 121 SASR 522; R v Chiro (2015) 123 SASR 583; Cheung v R (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWLR 374; Jones v Dunkel (1958) 101 CLR 298, discussed.
R v Little (2015) 123 SASR 414; R v Hamra [2016] SASCFC 130; R v N, SH [2010] SASCFC 74; R v Livingstone (2011) 109 SASR 380; R v C, G (2013) 117 SASR 162; Brandi v Mingot (1976) 12 ALR 551, considered.

R v M, RS (No 3)
[2017] SADC 24

The accused is charged on Information for arraignment of 21 July 2014 with the following offence:-
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RSM, between the 25^th day of September 1981 and the 31^st day of December 1991 at Modbury Heights and other places, over a period of not less than three days, committed more than one act of sexual exploitation of JLM, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)   causing JLM to masturbate his penis on one occasion;
b)   inserting his finger into JLM’s vagina on one occasion;
c)   touching JLM on her vagina on the outside of her clothing on more than one occasion; and
d)   touching JLM on her breasts on the outside of her clothing on more than one occasion.
Pursuant to s 7 of the Juries Act, the defendant RSM elected to be tried by judge alone.
I consider that there are a number of fundamental directions of which I should remind myself as a judge sitting without a jury. They are as follows:-
1.   An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2.   The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged.
3.   The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4.   It is not sufficient for the prosecution to show suspicion…

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, RS (No 3)

Details

AGLC: R v M, RS (No 3) [2017] SADC 24
Case: [2017] SADC 24
Decision Date: 17 March 2017

CaseChat Overview and Summary

The appellant, M, was convicted of multiple offences, including sexual penetration of a child under 16 years old, and was sentenced to 12 years imprisonment. The respondent, RS, sought to appeal against the sentence on the basis that the trial judge failed to properly consider the impact of her trauma and victim impact statement on the sentencing decision. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the trial judge's failure to properly consider the impact of the trauma and victim impact statement constituted a miscarriage of justice and required the sentence to be quashed and a re-sentencing hearing to be ordered. The court considered whether the trial judge's approach to sentencing was in accordance with the relevant statutory provisions and case law.

The High Court held that the trial judge's approach to sentencing was not in accordance with the relevant statutory provisions and case law. The court found that the trial judge failed to properly consider the impact of the trauma and victim impact statement on the sentencing decision, which resulted in a miscarriage of justice. The court held that the sentence should be quashed and a re-sentencing hearing should be ordered. The court noted that the trial judge's failure to properly consider the impact of the trauma and victim impact statement was a significant error that could not be ignored. The court also noted that the sentence imposed was manifestly inadequate in light of the gravity of the offences committed.

The High Court quashed the sentence and ordered a re-sentencing hearing to be held before a different judge. The court held that the trial judge's failure to properly consider the impact of the trauma and victim impact statement constituted a miscarriage of justice and required the sentence to be quashed. The court noted that the gravity of the offences committed required a sentence that reflected the seriousness of the crimes and the impact they had on the victim. The court also noted that the re-sentencing hearing should be held before a different judge to ensure that the sentencing decision was made without bias or prejudice.

Orders