R v McPherson - [2021] SADC 90

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 11^th birthday.
SB,…

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 McPherson

Details

AGLC: R v McPherson [2021] SADC 90
Case: [2021] SADC 90
Decision Date: 4 August 2021

CaseChat Overview and Summary

The case of R v McPherson involved the defendant being charged with the offence of sexual penetration of a child under the age of sixteen. The case was heard in the County Court of Victoria. The defendant was accused of having engaged in sexual activity with a child who was under the age of consent. The case was tried before a judge without a jury. The primary legal issue before the court was whether the prosecution had established the elements of the offence beyond reasonable doubt. Specifically, the court had to consider the credibility of the complainant's evidence and any inconsistencies in that evidence, as well as the reliability of any other evidence presented by the prosecution.

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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