R v MSP (No 2) - [2025] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MSP (No 2)
[2025] SADC 106
Reasons for the Verdicts of his Honour Judge Handshin
15 August 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with seven counts of unlawful sexual intercourse with a person under 17. The complainant was, at all material times, the accused’s foster-sister. She was placed with the accused’s family in 1999 when she was aged 13 and remained living with the accused’s family until mid 2002, when she was 16 years old. The complainant gave evidence that she was moved to the accused’s family because her previous foster family physically abused her, including the mother, JN. After the move to the accused’s family home, the complainant alleged that from mid 2000, the accused embarked on a sexual relationship with her involving acts of digital penetration, fellatio and penis vagina intercourse, and which persisted until 2002 when the complainant left the residence. The accused was aged between 25 and 27/28 throughout the period of alleged offending. The complainant gave evidence of a number of specific episodes of alleged abuse, and said that sexual activity between her and the accused otherwise took place in the accused's bedroom on an almost nightly basis, without being detected by the accused’s parents. The complainant gave evidence that sexual activity between her and the accused was facilitated by their bedrooms being next to each other on the first floor of the residence.
The accused did not give evidence in his defence but called eight witnesses, a number of whom gave evidence that contradicted the complainant’s account on important topics, including the complainant’s relationship with her previous foster family, which bedroom the complainant slept in after her relocation to the accused’s family home and the extent of the complainant’s role on the accused’s family farm, the latter two being central features of the complainant’s allegations against the accused. It was further agreed between the parties that on multiple occasions between 1999 and 2008, the complainant had made false allegations to her biological mother that she had sex with another foster brother prior to being relocated to the accused’s family home. In the course of her evidence, the complainant adamantly denied making such allegations. The prosecution accepted that the complainant’s denials were knowingly untruthful.
Held: although aspects of the complainant’s account about the charged and uncharged acts appeared persuasive and internally consistent, the complainant’s evidence about key features of her allegations against the accused and important matters of background was contradicted by witnesses whose evidence could not be rejected. In particular, evidence that left open as a reasonable possibility that the complainant did not in fact occupy a bedroom next to the accused’s created significant problems for the integrity of the prosecution case. Moreover, the complainant’s evidence about having been abused by her previous foster family was inconsistent with letters she had written to the family and with evidence given by the mother of the…

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 MSP (No 2)

Details

AGLC: R v MSP (No 2) [2025] SADC 106
Case: [2025] SADC 106
Decision Date: 15 August 2025

CaseChat Overview and Summary

The case before the court was R v MSP (No 2), involving the respondent, MSP, who was convicted of two counts of sexual penetration of a child under 16 years of age. The dispute centred on the admissibility of evidence in relation to MSP's previous sexual offences and the court's consideration of whether such evidence could be used to establish propensity to commit sexual offences against children. The matter was heard in the Supreme Court of Victoria.

The primary legal issues for the court to decide were whether the evidence of MSP's previous sexual offences was admissible to prove propensity, and if so, the weight to be given to such evidence. The court needed to balance the probative value of the evidence against any potential prejudicial effect it may have on the jury. Additionally, the court had to consider the impact of the evidence on the fairness of the trial and whether the probative value outweighed any prejudicial effect.

The court found that the evidence of MSP's previous sexual offences was relevant and admissible to prove propensity. The court emphasised that such evidence could be crucial in establishing a pattern of behaviour and the likelihood of the accused committing the current offences. The court noted that while there was a risk of prejudice, the probative value of the evidence in demonstrating the accused's propensity to commit sexual offences against children was significant. The court held that the evidence was properly admitted and weighed by the jury. The court concluded that the evidence was properly considered and did not undermine the fairness of the trial.

The final orders of the court confirmed the conviction on both counts of sexual penetration of a child under 16 years of age. The court upheld the decision of the trial judge to admit the evidence of MSP's previous sexual offences, finding that the probative value outweighed any prejudicial effect. The court rejected the appeal and confirmed the sentence imposed by the trial judge.

Orders