DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCPHERSON
Criminal Trial by Judge Alone
[2021] SADC 90
Reasons for the Verdict of her Honour Judge Tracey
4 August 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Accused charged with maintaining an unlawful sexual relationship with a child - alleged offending occurred when complainant was aged between six and 11 years of age - forensic disadvantage - elected for trial by judge alone.
Held: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Mann [2020] SASCFC 69; DES v The Queen [2020] SASCFC 32, considered.
R v MCPHERSON
[2021] SADC 90
Criminal
David John McPherson (the accused) is charged with maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charge and elected to be tried by judge alone.
It is alleged that the accused committed the offence against the complainant, SB, during a time when the accused was friends with her parents. The charge is as follows:
Statement of Offence
Maintaining an unlawful sexual relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David John McPherson at Blair Athol, between the 1st day of January 2006 and the 21st day of February 2011, maintained an unlawful sexual relationship with SB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards SB, namely:
a) touching her buttocks on more than one occasion, and
b) touching her vagina on more than one occasion.
Prosecution case
The charged offending relates to acts alleged to have taken place from January 2006 through to February 2011 when SB was aged between nearly six and 11 years.
On the prosecution case, SB’s father and the accused were work colleagues and through that connection, SB’s parents and the accused and his then-partner Melissa Nowland, developed a friendship. The two families lived close by, would regularly socialise, and SB would sleep over at the accused’s house from time to time. It is alleged that the accused repeatedly sexually abused SB by touching her on her vagina and on her bottom, both over and underneath her clothing. All these acts are alleged to have taken place at the accused’s house in a room where a bar had been set up, and first occurred in the context of the accused offering SB lollies if she let him touch her. While SB was unable to recall the specific occasions when the touching occurred, she said the touching over clothing on her bottom and her vagina, and then eventually under her clothing, occurred on many occasions.
It is the prosecution case that the accused’s inappropriate touching stopped prior to or at the time SB moved schools on 21 February 2011, the date of her 11th birthday.
SB,…
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- AGLC
- R v McPherson [2021] SADC 90
- Case
- [2021] SADC 90
- Decision Date
CaseChat Overview and Summary
In delivering the judgment, the judge carefully weighed the evidence presented by both the prosecution and the defence. The court found that there were significant inconsistencies in the complainant's evidence, and that these inconsistencies undermined the reliability of her testimony. The judge also considered other evidence presented by the prosecution, including medical evidence and the defendant's admissions, but ultimately concluded that this evidence was not sufficient to establish the offence beyond reasonable doubt. The judge found the defendant not guilty of the charge.
The court's decision was based on the judge's assessment of the credibility and reliability of the evidence presented. The inconsistencies in the complainant's evidence were critical to the outcome, as they cast doubt on the overall reliability of her testimony. The judge found that the prosecution had not discharged the burden of proving the offence beyond reasonable doubt, and accordingly, the defendant was acquitted.
Orders
Orders of the court
Held: Not guilty.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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