R v Mtm No. DCCRM-02-1192 - [2004] SADC 59

R v M T M
[2004] SADC 59
Chief Judge Worthington
Criminal

The accused is charged is with persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. It is alleged that between 28 July 1994 and 31 December 1999 he engaged in persistent sexual abuse of F, his biological daughter, when she was aged between 10 and 15 years. The relevant conduct complained of is cunnilingus, inserting his finger into her vagina, inserting his penis into her vagina and causing her to perform acts of fellatio. The Information alleges that there were at least three separate incidents falling on separate days in which the accused committed a sexual offence against F.
As relevant to the trial, s74 reads as follows:
“74(1)     A person may be charged with and convicted of the offence of persistent sexual abuse of a child.
(2)     Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3)     A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4)     A charge of persistent sexual abuse of a child -
(a)must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and
(b)must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5)     Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child -
(a)the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and
(b)the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred).
(6)     The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of subsection (5).
(7)     ..............................
(8)     ..............................
(9)     ..............................
(10)A prosecution on behalf of the Crown for persistent sexual abuse of a child cannot be commenced without the consent 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 Mtm No. DCCRM-02-1192

Details

AGLC: R v Mtm No. DCCRM-02-1192 [2004] SADC 59
Case: [2004] SADC 59
Decision Date: 8 April 2004

CaseChat Overview and Summary

The case of R v M T M involved a charge against the accused of persistent sexual abuse of a child, his biological daughter F, under s74(1) of the Criminal Law Consolidation Act 1935. The alleged offences occurred between 28 July 1994 and 31 December 1999, when F was between the ages of 10 and 15. The Crown had to prove beyond reasonable doubt that the accused engaged in at least three separate incidents of sexual offences against F on separate days. The accused pleaded not guilty and the case was heard by the court. The legal issues before the court were whether the Crown had established the necessary elements of the offence of persistent sexual abuse of a child and whether the evidence provided by F, the complainant, was reliable and sufficient to support a conviction. The court had to carefully consider the evidence of F, as well as the evidence of prior conviction and uncharged acts, in determining whether the accused was guilty of the charged offence. After closely scrutinising the evidence, the court found that F's evidence of what occurred at Ardross Crescent was reliable and that it was safe to make findings based upon it. The court was satisfied beyond reasonable doubt that there were multiple acts of unlawful sexual intercourse and at least three separate incidents of such an offence occurring while F was visiting or staying with the accused at Ardross Crescent. Consequently, the accused was found guilty of persistent sexual abuse of a child.

Orders