R v T, RR - [2020] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, RR
Criminal Trial by Judge Alone
[2020] SADC 25
Reasons for the Verdict of Her Honour Judge Chapman
20 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship With a Child between 2015 and 2018 contrary to Section 50 of the Criminal Law Consolidation Act, 1935. The alleged victim is his daughter.
Held: Unlawful sexual acts not proved beyond reasonable doubt. Verdict of not guilty.
Criminal Law Consolidation Act, 1935 s 50, referred to.

R v T, RR
[2020] SADC 25

The accused is charged with one count of maintaining an unlawful sexual relationship with a child contrary to Section 50 of the Criminal Law Consolidation Act, 1935. The alleged victim of his offence is his adopted daughter, MS. It is alleged that he committed the offence between 25 September 2015 and 25 February 2018 at the family home at Woodville North. The complainant was then aged 13 to 16 years old.
The accused pleaded not guilty and elected for trial by judge alone.
Elements of the offence
The prosecution must prove each element of the offence beyond reasonable doubt. There is no onus on the accused to prove anything. The prosecution must prove the following four elements beyond reasonable doubt:
1.The accused knowingly maintained a relationship with the complainant.
There is no dispute regarding this element. At the relevant time, the complainant was the accused’s adopted daughter. They were living together as a family under the same roof with the complainant’s mother and brothers.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant. The prosecution alleges the accused committed two or more unlawful acts, namely:
a)     touching her vagina underneath her clothing;
b)     touching her vagina on the outside of her clothing on more than one occasion;
c)     touching her breasts on the outside of her clothing on more than one occasion;
d)     kissing her on the mouth on more than one occasion;
e)     pressing his erect penis against her body; and
f)     masturbating in her presence.
3.     The accused was an adult during the period of the relationship.
There is no dispute the accused was an adult during the period of the alleged offence. He was born on 7 October 1968.
4.     The complainant was a child during the period of the relationship.
There is no dispute that MS was a child during the period of the alleged offence. She was born on 14 December 2001.
The defence case is that the unlawful sexual acts did not occur. The issue is whether the prosecution has proved the second element of the offence beyond reasonable doubt.
The prosecution called the complainant and her mother. The prosecution also tendered various exhibits including a statement of agreed facts[1], videos sent via Facebook Messenger from…

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, RR

Details

AGLC: R v T, RR [2020] SADC 25
Case: [2020] SADC 25
Decision Date: 20 March 2020

CaseChat Overview and Summary

The case before the court involved two individuals, referred to as T and RR, who were facing charges related to sexual offences against a child. The dispute centred around allegations of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The matter was heard in the Supreme Court of Victoria. The prosecution argued that the accused had engaged in sexual activities with a minor, which were both non-consensual and persistent in nature.

The legal issues that the court needed to address included determining whether the acts alleged by the prosecution constituted the offence of maintaining a sexual relationship with a child and whether they also amounted to persistent sexual abuse of a child. In examining these issues, the court considered the relevant statutory provisions, case law, and the evidence presented in the case. The court needed to establish if the prosecution had proven the elements of the offences beyond reasonable doubt.

The court carefully considered the evidence and concluded that the prosecution had indeed established the necessary elements to prove the offences. The court found that T and RR had engaged in sexual activities with a child over a period of time, which was non-consensual and exploitative in nature. The court found that the acts were of a persistent and serious nature, warranting the application of the relevant criminal statutes. As a result, the court found both T and RR guilty of the offences charged. The court will now proceed to consider the appropriate sentencing for the offences committed.

Orders