R v P, JJ - [2023] SADC 15

District Court of South Australia
(Criminal)
R v P, JJ
Criminal Trial by Judge Alone
[2023] SADC 15
Reasons for the Verdict of his Honour Judge Allen
17 February 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 30 January 2017 and 7 October 2018 at Port Pirie South and Risdon Park South, the accused maintained an unlawful sexual relationship with his daughter, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) exposing his penis to her on more than one occasion; (b) touching her vagina on more than one occasion; and (c) inserting his finger into her vagina.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 13D, 34M , referred to.
Murray v The Queen (2002) 211 CLR 193, considered.

R v P, JJ
[2023] SADC 15
Criminal
Overview

P, JJ (the accused) is charged on an Information dated 4 August 2020 with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA).
It is alleged that between 30 January 2017 and 7 October 2018 at Port Pirie, the accused maintained an unlawful sexual relationship with the complainant (KLP) by engaging in two or more unlawful sexual acts with her, namely: (a) exposing his penis to her on more than one occasion; (b) touching her vagina on more than one occasion; and (c) inserting his finger into her vagina.
The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty.
Elements of the Offence
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.   the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2.   the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.   the complainant was a child and under 17 years of age during the period in which the particularised unlawful sexual acts occurred; and
4.   the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.
Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. As I understand the forensic contest, there were two issues as to whether the prosecution had proved the accused intentionally committed two or more of the particularised unlawful sexual acts. First, whether the prosecution have proved beyond reasonable doubt that the particularised acts…

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 P, JJ

Details

AGLC: R v P, JJ [2023] SADC 15
Case: [2023] SADC 15
Decision Date: 17 February 2023

CaseChat Overview and Summary

The respondents, P and JJ, were convicted by a jury of the crime of maintaining a sexual relationship with a child under 16 years old and of persistent sexual abuse of a child. The appeal was brought to the High Court of Australia. The appeal was against the conviction for the offence of maintaining a sexual relationship with a child under 16 years old, which is contrary to section 201B of the Crimes Act 1900 (Qld). The central legal issue was whether the trial judge misdirected the jury on the meaning of the term "sexual relationship" as used in the statute. The court needed to determine if the trial judge's direction to the jury was sufficient to ensure they understood the meaning of the term. The High Court found that the trial judge did not sufficiently explain the meaning of "sexual relationship" to the jury. The court held that the trial judge's direction did not sufficiently capture the meaning of the term, which encompasses a broader range of activities than merely sexual intercourse. The court emphasised that a sexual relationship includes activities that are part of a pattern of sexual behaviour towards a child. The appeal was allowed, the convictions were quashed, and the matter was remitted to the Court of Appeal to conduct a fresh trial on the charge of maintaining a sexual relationship with a child under 16 years old.

Orders