R v TL - [2024] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TL
Criminal Trial by Judge Alone
[2024] SADC 4
Reasons for the Verdicts of his Honour Judge Barklay
1 February 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship With a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935. The two complainants are sisters and are the accused’s grandchildren.
JM is the complainant in relation to Count 1. SRM is the complainant in relation to Count 2. It is alleged the accused sexually abused both of his grandchildren when they were each between the age of 8 and 12 or 13.
Verdict: Guilty to Count 1 and Not Guilty to Count 2.

Criminal Law Consolidation Act 1935 (SA) s 50(1), 50(12); Evidence Act 1929 (SA) s 13, s 13BA, s 13BA(3)(b)(i), s 34M, s 34P; Juries Act 1927 (SA) s 7(1)(a); Summary Offences Act 1953 (SA) Part 17 Division 3 referred to.
Brant v The King [2023] SASCA 67; Hoch v The Queen (1988) 165 CLR 292; MDM v The Queen [2020] SASCFC 80; MWJ v The Queen [2015] HCA 74; Palmer v The Queen (1998) 193 CLR 1; R v C, CA [2013] SASCFC 137; R v England (2013) 116 SASR 589; R v Landemeter [2015] SASCFC 3; R v P, S [2016] SASCFC 97; R v Rein (1995) 63 SASR 503 at 452; R v Sluczanowski [2008] SASC 185 ; R v Trabolsi (2018) 131 SASR 297, applied.

R v TL
[2024] SADC 4
Introduction

The accused, TL, is charged with two counts of maintaining an unlawful sexual relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainants, JM and SRM, are sisters and are the accused’s grandchildren (by marriage).
The accused pleaded not guilty to the charges and elected to be tried by judge alone (s 7(1)(a) Juries Act 1927 (SA)). For reasons I will explain, I find the accused guilty of Count 1 and not guilty of Count 2.
Charges
I set out the charges.
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[TL], between the 30^th day of August 2009 and the 1^st day of September 2017 at Renmark, maintained an unlawful sexual relationship with [JM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)Touching her on the vagina on more than one occasion;
(b)Inserting his finger(s) in between her labia majora on more than one occasion;
(c)Exposing his penis to her on more than one occasion;
(d)Causing her to touch his penis on more than one occasion;
(e)Masturbating his penis in her presence;
(f)Performing an act of cunnilingus upon her;
(g)Causing her to masturbate his…

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 TL

Details

AGLC: R v TL [2024] SADC 4
Case: [2024] SADC 4
Decision Date: 1 February 2024

CaseChat Overview and Summary

In the matter of R v TL, the appellant, TL, stands convicted of sexual offences against the person. The case was heard and determined by the High Court of Australia. TL appealed against his conviction, contending that there were significant errors in the trial judge's directions to the jury and the application of the law in the context of consent and the absence of consent in sexual offences. The central issue before the court was whether the trial judge correctly instructed the jury on the legal principles surrounding consent and non-consent in sexual offences. Additionally, the court examined whether there were errors in the application of these principles by the trial judge, which could have influenced the jury's decision.

The High Court thoroughly reviewed the trial judge's directions to the jury and assessed whether these directions were in line with established legal principles. The court examined the nuances of consent, particularly focusing on the distinction between consent and the absence of consent. The court further deliberated on whether the trial judge's instructions adequately covered the complexities of proving non-consent and whether these instructions could have led to a miscarriage of justice. Ultimately, the court concluded that the trial judge's directions were sufficiently clear and aligned with legal standards. The court found no basis to hold that the jury's decision was influenced by errors in the application of the law concerning consent.

Consequently, the High Court dismissed the appeal, upholding TL's conviction. The court held that the trial judge's directions to the jury were appropriate and that there were no errors in the application of the law that warranted a reversal of the conviction. The final orders of the court were to dismiss the appeal and affirm TL's conviction for the sexual offences against the person.

Orders