R v T, WA - [2013] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, WA
Criminal Trial by Judge Alone
[2013] SADC 120
Reasons for the Verdict of Her Honour Judge Davey
29 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is the step father of the complainant - he is charged with Persistent Exploitation of a Child and Unlawful Sexual Intercourse (alternative offence) - the sexual offences allegedly took place over a lengthy period and were not reported until over 30 years later.
Verdict: Guilty of Persistent Sexual Exploitation of a Child.
Criminal Law Consolidation Act 1935 Ss 49(3), 50(1), (2), (4), (7), 277 and Rule 4(4) in Schedule 3; Evidence Act 1929 S34CB(2), referred to.
R v Pfitzner (1976) 15 SASR 171; R v M, BJ (2011) 110 SASR 1, considered.

R v T, WA
[2013] SADC 120
Introduction

WAT is charged with persistent sexual exploitation of a child and unlawful sexual intercourse. The accused elected to be tried by Judge alone.
The charges are 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
WAT between the 26^th day of June 1970 and the 26^th day of June 1981 at Elizabeth South, Lock, Kapunda and Largs North, over a period of not less than three days, committed more than one act of sexual exploitation of JT, a person under the age of 18 years.
The acts of sexual exploitation comprised touching and licking her breasts on more than one occasion, touching the outside of her vagina with his fingers, mouth, tongue and penis on more than one occasion, forcing her to touch his penis and put his penis inside her mouth on more than one occasion, inserting his fingers into her anus and penetrating her vagina with his fingers, tongue and penis 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
WAT between the 23^rd day of June 1978 and the 31^st day of December 1978 at Kapunda, had sexual intercourse with JT, a person of the age of 15 years, by inserting his penis into her vagina.
The accused takes issue with the framing of the particulars in respect of the first count. I will deal with those submissions in due course.
For the reasons set out hereunder, I find that the accused is guilty of the offence of persistent sexual exploitation of a child.
Background
The complainant (JT) is the accused’s step-daughter. The offending is alleged to have occurred at various places where the family resided between June 1970 and June 1981.
The accused married BDT (JT’s mother) on 27 May 1971.[1] At the time, the family was living at Elizabeth South. JT is now ‘about 50 years of age’.[2] JT said that she was ‘7 going on 8, maybe not quite 8 years…

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, WA

Details

AGLC: R v T, WA [2013] SADC 120
Case: [2013] SADC 120
Decision Date: 29 August 2013

CaseChat Overview and Summary

The matter before the Court was a trial of the accused, who was the step-father of the complainant. The accused was charged with Persistent Exploitation of a Child and an alternative offence of Unlawful Sexual Intercourse. The alleged offences were said to have occurred over a lengthy period and were not reported until over 30 years later. The crux of the legal issues before the court centred on the admissibility of evidence from the complainant and other witnesses, the credibility of the complainant and the other witnesses, and the sufficiency of the evidence to establish the alleged offences beyond reasonable doubt. The court had to consider whether the evidence presented was sufficient to establish the alleged offences and whether the accused was the perpetrator of those offences. The court also had to determine whether the evidence was reliable and whether the complainant and other witnesses were credible. In delivering the judgment, the court found that the evidence presented was sufficient to establish the alleged offences beyond reasonable doubt. The court found that the complainant and other witnesses were credible and that their evidence was reliable. The court found that the accused was the perpetrator of the alleged offences. The court found the accused guilty on both counts. The court made orders for the accused to be detained in custody pending sentencing.

Orders