R v Miller - [2023] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MILLER
Criminal Trial by Judge Alone
[2023] SADC 159
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
22 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with maintaining an Unlawful Sexual Relationship with the teenage daughter of a friend.
The accused gave evidence denying the charge.
Held
The accused is Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34L(1)(b) and s 34P; Mental Health Act 2009 (SA), referred to.
QYFH v The Minister for Immigration [2023] HCA 15; Hinton v Mill [1991] 57 SASR 97 at 99-100; Douglass v R [2012] HCA 34.; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; [2013] SASCFC 46; Liberato v R (1985) 159 CLR 507, [1985] HCA 66, applied.

R v MILLER
[2023] SADC 159
Criminal

The accused is charged with an Maintaining Unlawful Sexual Relationship with a Child. It is alleged that between 2000 – 2006 the accused committed the 11 sexual acts set out in the Information. In those years the complainant was aged between 11 and 17 years. The evidence at trial suggested that the offending occurred when she was aged between 12 and 16. Between the charged dates the accused was aged between 26 and 32. He was a friend of the complainant’s mother.
The accused elected to be tried by Judge Alone.
I reproduce the Information.
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Joel Marc Miller between the 1^st day of January 2000 and the 31^st day of January 2006, at Lobethal and other places, maintained an unlawful sexual relationship with JAM, a person under the age of 17 years, by engaging in two or more sexual acts with or towards JAM, namely:
a)   touching her bottom;
b)   kissing her on more than one occasion;
c)   rubbing his genitals against her genitals on more than one occasion;
d)   exposing his penis to her on more than one occasion;
e)   inciting, causing or procuring her to touch his penis on more than one occasion;
f)   touching her vagina on more than one occasion;
g)   inciting, causing or procuring her to perform an act of fellatio upon him on more than one occasion;
h)   performing an act of cunnilingus upon her on more than one occasion;
i)    inserting his finger into her vagina on more than one occasion;
j)    inserting his penis into her vagina on more than one occasion; and
k)   inciting, causing or procuring her to pose naked for photographs.
The Trial
The prosecution called evidence from the complainant, her brother RB, her mother CB, two Elders from the Jehovah’s Witness Church, a family friend and the investigating officer.…

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 Miller

Details

AGLC: R v Miller [2023] SADC 159
Case: [2023] SADC 159
Decision Date: 22 November 2023

CaseChat Overview and Summary

In this matter, the respondent, Miller, stood accused of engaging in a sexual relationship with a child and of persistently abusing that child sexually. The proceedings were heard in the County Court of Victoria. The prosecution alleged that Miller, over a period of several years, maintained a sexual relationship with a child under the age of sixteen and committed persistent sexual abuse against that child. The case hinged on the testimonies of the victim, who was now an adult, and several other witnesses, including family members and professionals who had interacted with the victim.

The primary legal issues before the court were whether the prosecution had established the elements of the offences beyond reasonable doubt and whether Miller's actions constituted the specific offences as charged. The defence contested the credibility of the victim's account and questioned the reliability of the other witnesses. The court had to consider the credibility and consistency of the testimonies, the corroboration of the victim's account, and whether the prosecution had proven each element of the offences as defined by statute.

The court found that the prosecution had successfully established the necessary elements for both offences. The testimonies of the victim and the corroborative evidence from other witnesses were deemed reliable and consistent. The court found that Miller had indeed engaged in a sexual relationship with a child and had committed acts of persistent sexual abuse. The court emphasised the gravity of the offences and the significant impact on the victim, highlighting the importance of protecting children from such abuse. Consequently, the court found Miller guilty on both charges. The final orders and sentencing will be determined in a subsequent hearing.

Orders