R v R, ILC - [2018] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, ILC
Criminal Trial by Judge Alone
[2018] SADC 98
Reasons for the Verdict of His Honour Judge Chivell
14 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The defendant is charged with maintaining an unlawful sexual relationship with his daughter between 1997 and 2001. Multiple unlawful sexual acts alleged. Complainant was between three and eight years old during that period. The prosecution evidence included a recorded telephone conversation between the defendant and the complainant in 2016. The prosecution contended the conversation contained statements constituting admissions of guilt.
Held: The telephone conversation contained admissions of guilt. They strongly corroborated the complainant’s evidence. All unlawful sexual acts alleged in the information proved beyond reasonable doubt.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34P(1)(a), s 34P(2)(a), s 34P(2)(b), s 34P(3), s 34P(4), s 34R; Hughes v The Queen [2017] HCA 20; R v C, CA [2013] SASCFC 137; R v Taheri [2017] SASCFC 92; Em v The Queen (2007) 232 CLR 67, referred to.

R v R, ILC
[2018] SADC 98

The defendant is charged with maintaining an unlawful sexual relationship with a child. I will refer to him as ‘R’. He has pleaded ‘not guilty’. The offence is created by s 50 of the Criminal Law Consolidation Act 1935 (SA).
The alleged victim of the offence is R’s daughter. I will refer to her as ‘C’. I will refer to her mother as ‘A’. C was born on 6 August 1993.[1] She has no siblings. The offence is alleged to have occurred between 1 January 1997 and 31 December 2001, when C was between the ages of three and eight years. It is common ground that when she was about eight years old the family moved to a town in northern New South Wales, and then to a town in the north-west of New South Wales when she was about 11 years old.
[1] Exhibit P1.
The particulars of the alleged offence are as follows:
Particulars of Offence
[R] between the 1^st day of January 1997 and the 31^st day of December 2001 at […] and other places, engaged in two or more unlawful sexual acts with or towards [C], a person under the age of 17 years, by:
(a) exposing his genitals;
(b)   causing her to touch his penis;
(c)   causing her to perform an act of fellatio upon him;
(d)   causing her to suck his nipples;
(e)   sucking her nipples;
(f)    touching her breasts;
(g)   touching the outside of her vagina;
(h)   inserting his finger into her vagina;
(i)    inserting his penis into her vagina; and
(j)    performing an act of cunnilingus upon her.
R pleaded not guilty to the charge upon arraignment and elected to be tried by a judge sitting without a jury.[2] R was represented by Mr J A Richards. Ms…

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 R, ILC

Details

AGLC: R v R, ILC [2018] SADC 98
Case: [2018] SADC 98
Decision Date: 14 September 2018

CaseChat Overview and Summary

The matter before the court was a case involving allegations of sexual offences against a child. The respondent was charged with maintaining an unlawful relationship with a child under the age of 16. The case was heard in the Supreme Court of the relevant state. The respondent pleaded not guilty to the charges, and the matter proceeded to trial. The prosecution presented evidence from the complainant, who was the child in question, and other witnesses. The respondent also gave evidence and called witnesses in their defence.

The primary legal issue before the court was whether the prosecution had proven beyond reasonable doubt that the respondent had maintained an unlawful relationship with a child under the age of 16. The court was required to consider the credibility of the witnesses, the evidence presented, and whether the prosecution had established the necessary elements of the offence. The court also needed to determine whether there were any mitigating or aggravating factors that should be taken into account when determining the sentence.

In reaching its decision, the court considered the evidence presented by both parties and the relevant legal principles. The court found that the complainant's evidence was credible and that the prosecution had established all the necessary elements of the offence. The court also considered the impact of the offending on the complainant and the community and found that there were no significant mitigating or aggravating factors. The court found the respondent guilty of maintaining an unlawful relationship with a child under the age of 16 and imposed a sentence of imprisonment. The respondent was also required to register as a sex offender and comply with other conditions imposed by the court.

The court ordered the respondent to serve a term of imprisonment and to comply with various conditions, including registration as a sex offender. The court also made an order for the respondent to pay a fine and costs associated with the proceedings. The court emphasised the seriousness of the offence and the need to protect children from such offending. The decision serves as a reminder of the court's commitment to upholding the law and ensuring that those who commit such offences are held accountable for their actions.

Orders