R v T, DJ - [2019] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, DJ
Criminal Trial by Judge Alone
[2019] SADC 51
Judgment of His Honour Judge Barrett
1 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship with a child, namely his two daughters (counts 1 and 2). He is also charged with assaulting his two daughters and two of his three sons (counts 3, 4, 5 and 9). The accused denied all offending in his interview with police.
Held: The accused is guilty of all charges.
Evidence Act 1929 (SA) ss 34M & 34P, referred to.
Police v G, DM [2016] SASC 39.; R v Kinloch (1996) 187 LSJS 124 at [130]; R v Jones [2018] SASCFC 80; Hughes v The Queen [2017] HCA 20; McPhillamy v The Queen [2018] HCA 52, considered.

R v T, DJ
[2019] SADC 51

The accused is charged with nine offences against four of his five children. Counts 1 and 2 charge him with Maintaining an Unlawful Sexual Relationship with his two daughters who are the eldest and the youngest of the children. Count 1 relates to the eldest, PT, and count 2 relates to LS, the youngest.[1] The accused is further charged with Common Assault in relation to the eldest (count 3) and an Aggravated Assault relating to the youngest (count 9). A nolle prosequi was entered in respect of count 7, a charge of Aggravated Assault against the eldest child and I found no case to answer in respect of count 8, a charge of Aggravated Assault against the youngest.
[1] I will use the initials denoting the first name commonly used by each of the siblings. LS has changed her surname.
The remaining three counts relate to assaults alleged in respect of two of the three sons. Count 4 is an allegation of Common Assault against AT. A nolle prosequi was entered in respect of count 6 which is also an allegation of Common Assault against AT. The prosecution acknowledges that the evidence suggests the two counts relate to the same event. AT is the second eldest child and the eldest boy. He did not give evidence at the trial. He declined to give a statement to police.[2]
[2] Detective Brevet Sergeant Dickenson, T428.
The remaining count, count 5, alleges Common Assault against JT, the youngest of the three sons. JT gave a statement to police but declined to sign it and give evidence.
The middle child, and the middle son, JYT, gave evidence which bears on several of the charges involving the other siblings. While he said the accused was harsh in his treatment of him he makes no allegation which was the subject of a charge against the accused.
The charges therefore relate to sexual offending and assaults against each…

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 T, DJ

Details

AGLC: R v T, DJ [2019] SADC 51
Case: [2019] SADC 51
Decision Date: 1 May 2019

CaseChat Overview and Summary

In the case of R v T, DJ, the respondent was convicted of maintaining an unlawful sexual relationship with a child and of assault. The matter was heard in the Supreme Court of Victoria. The respondent appealed against his conviction and sentence. The appeal was against both conviction and sentence.

The appeal raised two primary legal issues. First, whether the evidence was sufficient to prove beyond reasonable doubt that the respondent maintained an unlawful sexual relationship with a child. Second, whether the assault conviction should be quashed due to lack of evidence that the act was intentional. The appeal also questioned whether the sentence was excessive given the totality of the circumstances.

The Court found that the evidence was sufficient to establish the unlawful relationship beyond reasonable doubt. The testimony of the child and corroborative evidence was compelling, and the Court rejected the respondent’s claims of fabrication. Regarding the assault conviction, the Court held that there was sufficient evidence to prove that the act was intentional and that the assault conviction was properly upheld. The Court also examined the sentencing and found that, while the sentence was severe, it was not manifestly excessive given the gravity of the offences.

The appeal was dismissed, and the convictions and sentence were upheld. The Court found no basis to interfere with the primary judgment.

Orders