R v T, LP - [2017] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, LP
Criminal Trial by Judge Alone
[2017] SADC 29
Reasons for the Verdicts of Her Honour Judge Tracey
30 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with three counts of Persistent Sexual Exploitation of a Child and in the alternative, three counts of Unlawful Sexual Intercourse. The accused is the step-father of the three complainants - the offences allegedly took place when they were children and over a lengthy period of time. All counts were tried jointly without objection. Uncharged sexual acts were alleged. There was a significant delay before the trial. The evidence included uncharged acts of violence directed towards the step children. Collusion cannot be excluded beyond reasonable doubt and significant inconsistencies within evidence of each complainant. The accused elected for trial by judge alone.
Verdicts - Not guilty all counts.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50(1); Evidence Act 1929 (SA) s 34P(4), referred to.
R v MJJ (2013) 117 SASR 81; BBH v The Queen (2012) 245 CLR 499, considered.

R v T, LP
[2017] SADC 29
Introduction

The accused (LT) was charged on Information with three counts of Persistent Sexual Exploitation of a Child and, in the alternative, three counts of Unlawful Sexual Intercourse involving three brothers, AL, GT and HT, as follows:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 1st day of September 1995 and the 31st day of December 1999 at Murray Bridge, over a period of not less than three days, committed more than one act of sexual exploitation of AL, a person under the age of 18 years, whilst he was in a position of authority.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)    Kissing AL on the mouth on more than one occasion.
b)    Touching AL’s penis on more than one occasion.
c)    Performing fellatio upon AL on more than one occasion.
d)    Causing AL to perform fellatio upon him on more than one occasion.
e)    Causing AL to rub his body against his body on more than one occasion.
f)    Attempting to insert his penis into the anus of AL on more than one occasion.
g)    Causing AL to attempt to insert his penis into his anus on more than one occasion.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT between the 25^th day of October 1995 and 31^st day of December 1997 at Murray Bridge, had sexual intercourse with AL, a person of the age of about 13 years, by performing an act of fellatio upon him.
Third Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
LT,…

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, LP

Details

AGLC: R v T, LP [2017] SADC 29
Case: [2017] SADC 29
Decision Date: 30 March 2017

CaseChat Overview and Summary

The case involved the accused who faced three charges of Persistent Sexual Exploitation of a Child and, in the alternative, three counts of Unlawful Sexual Intercourse. The accused, who was the step-father of the three complainants, was alleged to have committed these offences against the children over an extended period of time. The trial proceeded jointly for all counts without any objections raised. The evidence presented included allegations of uncharged sexual acts and acts of violence directed towards the step-children. Furthermore, the possibility of collusion among the complainants could not be ruled out beyond reasonable doubt, and there were significant inconsistencies in the evidence provided by each complainant. The accused opted for a trial by judge alone.

The primary legal issues before the court were whether the evidence was sufficient to establish the accused's guilt beyond reasonable doubt, considering the potential for collusion and inconsistencies in the testimonies. The court also needed to assess the admissibility and weight of the uncharged acts of violence and sexual acts in determining the accused's guilt. Given the lengthy delay before the trial, the court needed to consider the impact of this delay on the reliability and credibility of the evidence presented.

The court carefully evaluated the evidence and found that there were significant inconsistencies in the testimonies of the complainants, which raised reasonable doubt about their reliability. Additionally, the potential for collusion among the complainants could not be excluded beyond reasonable doubt. The uncharged acts of violence and sexual acts, while concerning, did not conclusively prove the accused's guilt on the charged offences. Ultimately, the court determined that the prosecution had not established the accused's guilt beyond reasonable doubt for any of the charges. Consequently, the accused was found not guilty on all counts.

Orders