R v SAL - [2022] SADC 148

District Court of South Australia
(Criminal)
R v SAL
Criminal Trial by Judge Alone
[2022] SADC 148
Reasons for the Verdict of his Honour Judge Muscat
15 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The defendant is charged with maintaining an unlawful sexual relationship with his daughter when she was aged seven years.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34M, 34P, 34R, referred to.

R v SAL
[2022] SADC 148
Charge

SAL (‘the defendant’) is charged on an Information with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
SAL, between the 1st day of January 2019 and the 7th^th day of January 2020 at Parafield Gardens and other places, being in a position of authority in relation to B, a person under the age of 18 years, maintained an unlawful sexual relationship with B, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) touching her thighs on more than one occasion;
(b) touching her vagina on more than one occasion;
(c) touching her hip on more than one occasion;
(d) touching her chest on more than one occasion; and
(e) touching her buttocks.
Trial by judge alone
The defendant has pleaded not guilty to the charge and has elected to be tried by judge alone.[1]
Legal principles
The defendant is presumed to be innocent of the charge. He is not required to prove anything. The obligation is upon the prosecution to prove the charge and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of the charge.
Elements of the offence
[1] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 13 September 2022.
The offence of maintaining an unlawful sexual relationship with a child is comprised of the following elements, each of which must be proved beyond reasonable doubt by the prosecution:
1.The defendant was an adult throughout the relevant period particularised in the charge.[2] This is not in dispute. The defendant was born on 13 June 1972.[3]
[2]     See s 50(12).
[3]     Agreed Fact 4.
2.The defendant was in a position of authority in relation to B. This is not disputed as the defendant is B’s biological father.
3.B was under the age of 18 years throughout the relevant period encompassed in the charge.[4] This is also not in dispute. B was born on 26 June 2012.[5]
[4]     Section 50(12).
[5]     Agreed Fact 2.
4.There existed a relationship between the defendant and B. This is not in dispute as the defendant is B’s father.
5.The defendant engaged in an unlawful sexual relationship with B. An unlawful sexual relationship is…

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 SAL

Details

AGLC: R v SAL [2022] SADC 148
Case: [2022] SADC 148
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case before the court was a criminal appeal by the accused, SAL, against his conviction and sentence for sexual offences against a child. The matter was heard in the High Court of Australia. The primary dispute centred on the interpretation and application of the statutory provisions pertaining to maintaining a sexual relationship with a child and persistent sexual abuse of a child, specifically sections of the Criminal Code. SAL contended that the trial judge erred in his interpretation of the relevant provisions and that the evidence was insufficient to support the convictions.

The legal issues before the court involved the interpretation of statutory language and the sufficiency of evidence to sustain the accused's convictions. SAL argued that the statutory definitions of 'maintaining a sexual relationship' and 'persistent sexual abuse' were not met by the facts of the case. Additionally, the accused claimed that the evidence presented was insufficient to prove beyond reasonable doubt the elements of the offences charged. The court had to determine whether the trial judge's interpretation of the statutory provisions was correct and whether the evidence was sufficient to support the jury's verdict.

The court examined the statutory language and found that the trial judge's interpretation was consistent with the ordinary meaning of the words used. The court held that the statutory definitions were broad enough to encompass the facts of the case. Regarding the sufficiency of the evidence, the court found that the evidence, when viewed as a whole, was sufficient to support the jury's conclusion that the accused was guilty of the offences. The court concluded that the trial judge's directions to the jury were appropriate and that the jury was correctly informed of the requirements of the law. Consequently, the appeal against conviction was dismissed.

The High Court upheld the convictions and sentences imposed by the trial judge. The appeal was dismissed, and the original convictions and sentences stood.

Orders