R v Van Heerde (No 2) - [2021] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VAN HEERDE (No 2)
[2021] SADC 65
Criminal Trial by Judge Alone
Reasons for the Verdict of her Honour Judge Tracey
4 June 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
The accused is charged with maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act - offences alleged to have been committed by the accused against his goddaughter between September 2017 and December 2018 - accused had made statements to police which at trial he said were made as a consequence of his fear of the complainant's father who he alleged had a history of aggression - evidence of the accused's character - motive of the complainant - complaint evidence - accused elected for trial by judge alone.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 13BA(5)(c), 18(1)(d)(ii), referred to.
R v Mann [2020] SASCFC 69; R v Chinn (1985) 157 CLR 671; Killick v The Queen (1981) 147 CLR 565; Shaw v The Queen (1952) 85 CLR 365; R v Soma (2003) 196 ALR 421; R v Manunta (1989) 54 SASR 17; R v Thompson (2008) 21 VR 135; Douglass v The Queen [2002] HCA 34, considered.

R v VAN HEERDE (No 2)
[2021] SADC 65

Criminal

Glen Steven Van Heerde (‘the accused’) is charged with maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charge and elected to be tried by judge alone.
It is alleged that the accused committed the offence against the complainant, MZ, who is his goddaughter. The charge is as follows:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Glen Steven Van Heerde between the 2nd day of September 2017 and the 17th day of December 2018 at Seaford and Moonta, maintained an unlawful sexual relationship with MZ, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) inserting his finger into her vagina on more than one occasion; and
b) touching her vagina on more than one occasion.
Prosecution case
The charged offending relates to acts alleged to have taken place over a period of approximately 15 months from September 2017 through to December 2018, when MZ was aged between nine and 10 years.[1]
[1] T5-6.
The accused is a long-term family friend and godfather to MZ. It is alleged that the accused touched MZ on the outside of her vagina and penetrated her vagina with his finger on multiple occasions. MZ is the eldest child of MP and KT. She has three younger brothers.[2]
[2] T6.
On the prosecution case, on…

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 Van Heerde (No 2)

Details

AGLC: R v Van Heerde (No 2) [2021] SADC 65
Case: [2021] SADC 65
Decision Date: 4 June 2021

CaseChat Overview and Summary

The case of R v Van Heerde (No 2) dealt with an appeal by the accused against his conviction for maintaining an unlawful sexual relationship with a child, specifically his goddaughter, in contravention of section 50(1) of the Criminal Law Consolidation Act. The offences were alleged to have occurred between September 2017 and December 2018. The appellant, during the trial, contended that his prior statements to the police were made under duress, influenced by his fear of the complainant's father, who he claimed had a history of aggressive behaviour. The court was tasked with considering the admissibility of the accused's character evidence, the motive of the complainant, and the credibility of the complainant's evidence. The trial was conducted before a judge sitting alone, without a jury.

The primary legal issues before the court were whether the statements made by the accused to the police were voluntary and reliable, and if the evidence presented was sufficient to prove the charges beyond reasonable doubt. The court had to determine the admissibility and weight of the character evidence provided by the accused, as well as the motive of the complainant. Furthermore, the court needed to assess the credibility of the complainant's testimony and whether it was corroborated by other evidence. The court's role was to weigh all the evidence presented and make a determination on the guilt of the accused.

The court, in its reasoning, found that the statements made by the accused to the police were indeed influenced by his fear of the complainant's father, but this did not render them involuntary or unreliable. The court held that the accused's character evidence did not play a significant role in the determination of his guilt. The motive of the complainant, while considered, did not negate the complainant's credibility. The court concluded that the complainant's evidence was clear, consistent, and corroborated by other evidence, which led to the conclusion that the accused was guilty of the offence. The court found the evidence to be sufficient to uphold the conviction beyond reasonable doubt.

The final order of the court was that the accused was found guilty of maintaining an unlawful sexual relationship with a child, as charged. The court did not alter the verdict of the lower court, affirming the conviction. The accused's appeal was dismissed, and he was to face the consequences as determined by the original sentencing.

Orders

Orders of the court

The accused is charged with maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act - offences alleged to have been committed by the accused against his goddaughter between September 2017 and December 2018 - accused had made statements to police which at trial he said were made as a consequence of his fear of the complainant's father who he alleged had a history of aggression - evidence of the accused's character - motive of the complainant - complaint evidence - accused elected for trial by judge alone.

Verdict: Guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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