R v Mann

Case [2020] SASCFC 69 17 July 2020

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
Question of Law Reserved (NO 1 OF 2020)
R v MANN
[2020] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
17 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Case stated by a Judge of the District Court following the acquittal of the respondent on a charge of maintaining an unlawful sexual relationship with a child between September 2010 and August 2011, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The Judge stated the following case for this Court’s consideration on the question of the nature of the relationships which fall within s 50 of the CLCA:
1. Does a conviction for the offence of Maintaining an Unlawful Sexual Relationship with a Child (‘MUSR’) contrary to s 50 of the CLCA require proof that:
a. First, there was a relationship between the accused and the complainant. That is separate from/outside of the alleged unlawful sexual acts?
b. Second, the accused maintained that relationship?
c. Third, the accused did so knowingly?
2. On the facts as I found them to be, was I correct to find, for the purposes of the offence of MUSR:
a. that it is inherent in the nature of a ‘relationship’ that it will extend over a period of time and be of a continuous nature?
b. that the limited interactions between the accused and the complainant over the alleged offending period and the former relationship between them were in combination insufficient to constitute a ‘relationship’ over the alleged offending period?
c. that even if there was a ‘relationship’ over the alleged offending period, in the circumstances of this case because the interactions between the accused and complainant were confined to visits to the house a handful of times – such that the accused arrived late at night, stayed overnight, the complainant provided breakfast three times and they played once with a bouncy ball – a relationship had not been ‘maintained’?
3. On the facts as I found them to be, was I correct to find:
a. that the prosecution is not required to prove that the accused maintained the same relationship over the relevant period as that which existed prior to the alleged sexual acts?
b. that the prosecution is not required to prove that the relationship was a ‘mutual one’ in the sense that both the accused and the complainant wanted a relationship?
4. If a relationship must be of a ‘continuous nature’, can a ‘connection’ or ‘association’ be characterised as a (continuous) relationship where there is a change in the nature of the relationship during the period in which the alleged…

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 Mann

Details

AGLC: R v Mann [2020] SASCFC 69
Case: [2020] SASCFC 69
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case of *R v Mann* concerned an appeal by the Crown against a decision of a District Court judge in South Australia. The appeal arose from charges brought against the respondent, Mann, for offences relating to the sexual abuse of a child, specifically maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appeal was brought by way of a case stated, raising questions of law for determination by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the District Court judge had erred in law by directing the jury to acquote the respondent on certain charges. This direction was based on the judge's interpretation of the evidence presented, particularly concerning the age of the complainant and the respondent's knowledge or belief about that age. The appeal therefore required the court to consider the elements of the offences charged and the evidentiary threshold required for a jury to find guilt.

The Full Court, comprising Kourakis CJ, Kelly and Peek JJ, analysed the relevant provisions of the *Criminal Law Consolidation Act 1935* (SA) pertaining to sexual offences against children. The court considered the statutory definitions of "child" and the mental elements required for the offences, including the concept of "recklessness" as to the age of the complainant. The court ultimately found that the judge had erred in law by directing an acquittal, concluding that there was sufficient evidence for the jury to consider the charges. The court reasoned that the judge had impermissibly usurped the role of the jury by making findings of fact that were within the jury's province.

The Full Court allowed the Crown's appeal, quashed the acquittal on the relevant counts, and remitted the matter to the District Court for a retrial on those charges.

Orders