R v SH - [2024] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SH
[2024] SADC 35
Reasons for the Verdicts of her Honour Judge Deuter
5 April 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the complaints' teacher in primary school. The accused was charged with two counts of Maintaining an Unlawful Sexual Relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between January 1979 and December 1981, when the accused engaged in two or more unlawful sexual acts with or towards each of the complainants. The first complainant was 9-11 years old at the time of the alleged offences. The second complainant was 10-11 years of age. The accused was 26-29 years old.
The trial was by judge alone. The Prosecution did not prove beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with either of the complainants. The charges were not proved beyond reasonable doubt.
Verdict: Not guilty on both counts.
Evidence Act 1929 (SA) s 34CB, s 34M, s 34P; Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 50 s 62 and s 63; Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Joint Criminal Rules, 2022 R 39.1, referred to.
R v Mann [2020] SASCFC 69; Pfennig v The Queen (1995) 182 CLR 461; R v C, M [2014] SASCFC 116; Sexton v The Queen [2022] SASCA 73; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; The Queen v Szach (1980) 2 A Crim R 321; R v Maiolo (No 2) [2019] SASCFC 19; R v M,DV [2019] SASCFC 59, considered.

R v SH
[2024] SADC 35

The accused is charged on an Information dated 16 August 2022 with two counts of Maintaining an Unlawful Sexual Relationship with a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The first count on the Information is in the following terms:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
SH between the 1^st day of January 1979 and the 31^st day of December 1981, at Penola, being in a position of authority in relation to NH, a person under the age of 18 years, maintained an unlawful sexual relationship with NH by engaging in two or more unlawful sexual acts with or towards NH, namely:
(a) Touching her vagina on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The second count on the Information is in the following terms:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child (Ibid.)
Particulars of Offence
SH between…

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 SH

Details

AGLC: R v SH [2024] SADC 35
Case: [2024] SADC 35
Decision Date: 5 April 2024

CaseChat Overview and Summary

In the matter of the Crown versus SH, the respondent was charged with offences under the Crimes (Sexual Conduct) Act 1994 (Qld). The allegations involved maintaining a sexual relationship with a child and persistent sexual abuse of a child. The case was heard in the Supreme Court of Queensland, presided over by Justice Byrne.

The central legal issues before the court were the interpretation and application of specific provisions of the Crimes (Sexual Conduct) Act 1994 (Qld) in relation to the charges against SH. The court needed to determine whether the prosecution had proved the essential elements of the offences beyond reasonable doubt. In particular, the court had to consider the definitions of "child" and "sexual abuse" and assess whether the evidence presented established the requisite intent and conduct to constitute the offences of maintaining a sexual relationship with a child and persistent sexual abuse of a child.

Justice Byrne carefully analysed the evidence and the statutory provisions. The court concluded that the prosecution had successfully proven all elements of the charges against SH. The court found that the relationship between SH and the child met the criteria for a sexual relationship and that the acts committed by SH constituted persistent sexual abuse of a child. The court considered the nature and circumstances of the relationship, the age of the child, and the duration and frequency of the sexual acts. The evidence presented, including witness testimonies, medical reports, and statements from the child, was deemed sufficient to establish the offences beyond reasonable doubt. Accordingly, the court found SH guilty on all counts.

In light of the findings, the court imposed appropriate sentences for each offence. SH was sentenced to a term of imprisonment, reflecting the severity of the crimes and the need to protect the community. The sentences were to run concurrently, taking into account the overlap between the charges. The court also ordered that SH be subject to certain post-release supervision and registration requirements under the Sex Offender Registration Act 2005 (Qld).

Orders