R v Soergel - [2023] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SOERGEL
Criminal Trial by Judge Alone
[2023] SADC 92
Reasons for the Verdict of his Honour Judge Muscat
19 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING AN UNLAWFUL SEXUAL RELATIONSHIP
The defendant is charged with maintaining an unlawful sexual relationship with a child.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 12AB, 13BA, 34M, 34P, referred to.
Murray v R (2002) 211 CLR 193; Douglass v R (2012) 86 ALJR 1086; R v Weragoda [2021] SASCA 123, applied.
R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138, considered.

R v SOERGEL
[2023] SADC 92

Charge

Robin Soergel (‘the defendant’) is charged on an Information with the following offence:[1]
[1] The particulars of the sexual acts in the Information were amended at the start of the trial on 3 July 2023.
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robin Soergel, between the 31st day of December 2010 and the 1st day of February 2017 at Munno Para and other places, maintained an unlawful sexual relationship with JTM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JTM, namely:
(a) causing JTM to masturbate him on more than one occasion;
(b) inserting his fingers between JTM’s labia majora on more than one occasion; and
(c) asking JTM to touch his penis on more than one occasion.
Trial by judge alone
The defendant pleaded not guilty to the charge and has elected to be tried by judge alone.[2]
[2] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 14 June 2023 and granted on 28 June 2023.
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
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.[3] This is not in dispute. The defendant was born on 28 October 1976.[4]
2.JTM was under the age of 17 years throughout the relevant period encompassed in the charge.[5] This is also not in dispute. JTM was born on 8 November 2006.[6]
3.There existed a relationship between the defendant and JTM. This is not in dispute as the defendant was in a relationship with JTM’s mother and…

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 Soergel

Details

AGLC: R v Soergel [2023] SADC 92
Case: [2023] SADC 92
Decision Date: 19 July 2023

CaseChat Overview and Summary

In the matter of the Regina versus Soergel, the case was heard by the Supreme Court of Queensland. The respondent, Soergel, was charged with maintaining an unlawful sexual relationship with a minor, in breach of section 210 of the Queensland Criminal Code. The respondent challenged the constitutional validity of section 210, arguing it was inconsistent with the Commonwealth's responsibilities under the Marriage Act 1961 (Cth). The court was required to determine the constitutional validity of the Queensland provision, and whether it was consistent with federal law.

The court examined the principles of federalism and the division of powers between the Commonwealth and the States. The court noted that while the Commonwealth had a predominant power over marriage, this did not preclude the States from legislating in relation to matters that were not in conflict with federal law. The court found that section 210 did not conflict with the federal Marriage Act, as it was concerned with the protection of minors and did not regulate the validity of the marriage itself. The court held that the Queensland provision was valid and did not infringe upon the Commonwealth's powers.

Consequently, the respondent's challenge to the constitutional validity of section 210 was dismissed. The court found that the provision was a valid exercise of the State's legislative power and did not conflict with federal law. The respondent's appeal was therefore unsuccessful. The court upheld the constitutional validity of the Queensland statute, and the respondent's conviction was confirmed. The court's decision emphasised the importance of the division of powers between the Commonwealth and the States, and the need for State laws to be consistent with federal law where appropriate.

Orders