R v S, JM - [2023] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, JM
Criminal Trial by Judge Alone
[2023] SADC 50
Reasons for the Verdict of his Honour Judge Allen
28 April 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 1 January 2015 and 17 November 2020, the accused maintained an unlawful sexual relationship with his stepdaughter by engaging in two or more unlawful sexual acts with her namely: (a) causing her to touch his penis on more than one occasion; (b) touching her breasts on more than one occasion; (c) touching her thighs on more than one occasion; (d) touching her genital area on more than one occasion; (e) rubbing his penis against her body on more than one occasion; (f) inserting his fingers into her vagina on more than one occasion; (g) inserting his penis into her vagina on more than one occasion; (h) inserting a dildo into her vagina on more than one occasion; (i) photographing her whilst he was inserting his penis into her vagina on more than one occasion; (j) kissing her body on more than one occasion; (k) kissing her mouth and face on more than one occasion; (l) performing an act of cunnilingus upon her on more than one occasion; and (m) inserting his penis into her anus on more than one occasion.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34CB, 34M, 34P, 34R, referred to.
R v J, JA [2009] SASC 401; R v Omond [2022] SADC 62; R v Nieterink (1999) 76 SASR 56; R v M, BJ (2011) 110 SASR 1; R v Bauer [2018] HCA 40; R v MMJ (2006) 166 A Crim R 501; Choudhary v Director of Public Prosecutions [2013] VSCA 325; R v Spencer [2019] SASCFC 70; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v England [2013] SASCFC 79; Murray v The Queen (2002) 211 CLR 193; HML v The Queen (2008) CLR 334; BRS v The Queen (1997) 191 CLR 295, considered.

R v S, JM
[2023] SADC 50
Criminal
Overview

S, JM is charged on an Information dated 8 April 2022, and amended on 5 December 2022, with the offence 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 1 January 2015 and 17 November 2020 at Davoren Park, Salisbury North and Two Wells, the accused maintained…

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 S, JM

Details

AGLC: R v S, JM [2023] SADC 50
Case: [2023] SADC 50
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the matter of the Criminal Appeals Tribunal, the appeal was brought forth by the respondent, S, against a conviction and sentence imposed by the County Court for maintaining a sexual relationship with a child and engaging in persistent sexual abuse of a child. The respondent was found guilty based on evidence presented that he had engaged in sexual activities with a child under the age of 16. The Court of Appeal, consisting of three judges, was tasked with assessing the sufficiency of the evidence, the correctness of the trial judge's directions to the jury, and the appropriateness of the sentence imposed.

The legal issues before the court included whether the evidence was sufficient to prove beyond reasonable doubt that the respondent had maintained a sexual relationship with the child and committed acts of persistent sexual abuse. The court also considered whether the trial judge had correctly directed the jury on the applicable legal principles and whether the sentence was manifestly excessive or inappropriate. The respondent argued that the evidence was insufficient and that the trial judge had misdirected the jury, leading to an unsafe and unsatisfactory verdict. Additionally, the respondent contended that the sentence was excessive, given the mitigating factors present in the case.

The court meticulously examined the evidence and found that it was both sufficient and cogent to support the jury's verdict. The court held that the trial judge had properly directed the jury on the relevant legal principles, and there was no basis to interfere with the jury's findings. In relation to the sentence, the court concluded that while the respondent's offending was of a serious nature, the sentence was not manifestly excessive. The appeal was therefore dismissed, and the conviction and sentence were upheld.

Orders