R v SGK - [2024] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SGK
Criminal Trial by Judge Alone
[2024] SADC 12
Reasons for the Verdicts of his Honour Judge Muscat
16 February 2024
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 two counts of sexually abusing a child. In relation to Count 1, the child is SA and in respect to Count 2, the child is SJ. SA and SJ are cousins. Each child is the defendant's granddaughter.
Verdicts: Not Guilty of each count.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34M, 34P, referred to.
R v S, DD (2010) 109 SASR 46; R v Duell [1964] QLR 451; R v P, S (2016) 261 A Crim R 329; R v C, CA [2013] SASCFC 137; R v MDM (2020) 136 SASR 360; R v DES [2020] SASCFC 32; Murray v R (2002) 211 CLR 193; R v Schulz (2016) 126 SASR 476, applied.

R v SGK
[2024] SADC 12
Charges

SGK (‘the defendant’) is charged on an Information with the following offences:
Count One
Offence Details
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
SGK, between the 1st day of January 2017 and the 31st day of December 2019 at […], maintained an unlawful sexual relationship with SA, a person under the age of 17 years, by inserting his finger or fingers into her vagina on more than one occasion.
Count Two
Offence Details
Sexual Abuse of a Child. (Ibid).
Particulars
SGK, between the 1st day of January 2017 and the 31st day of December 2019 at […] and […] maintained an unlawful sexual relationship with SJ, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) rubbing her genital area on more than one occasion; and
(b) inserting his finger or fingers into her vagina on more than one occasion.
Trial by judge alone
The defendant has pleaded not guilty to the charges and has elected to be tried by judge alone.[1]
[1] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 filed 12 September 2023.
Legal principles
The defendant is presumed to be innocent of the charges. He is not required to prove anything in his defence. The obligation is upon the prosecution to prove each charge separately 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 either charge.
Elements of the offence
The offence of sexual abuse of 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…

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 SGK

Details

AGLC: R v SGK [2024] SADC 12
Case: [2024] SADC 12
Decision Date: 16 February 2024

CaseChat Overview and Summary

In the matter of R v SGK, the defendant was charged with maintaining a sexual relationship with a child under 16 and persistent sexual abuse of a child. The case was heard in the County Court of Victoria. The dispute involved allegations of a sexual relationship between the defendant and a child who was under the age of 16, as well as claims of persistent sexual abuse over a period of time.

The primary legal issues the court needed to determine were whether the prosecution had proven beyond reasonable doubt that the defendant maintained a sexual relationship with a child under 16 and engaged in persistent sexual abuse of the child. The court also had to consider the credibility and reliability of the child's testimony and any corroborating evidence provided by the prosecution. The court further examined the statutory definitions and elements of the offences as set out in the Crimes Act 1958.

The court meticulously evaluated the evidence presented, including the child's testimony and any additional corroborating evidence. It assessed the credibility of the witnesses and the consistency of their statements. The court found that the prosecution had successfully established the elements of the offences beyond reasonable doubt. The court concluded that the defendant had indeed maintained a sexual relationship with the child and had engaged in persistent sexual abuse. Consequently, the court found the defendant guilty on both counts. The court then proceeded to consider the appropriate sentences for each offence, taking into account the gravity of the crimes and the impact on the victim.

Orders