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Cabot (a pseudonym) v R (No 2)

Cabot (a pseudonym) v R (No 2)

Case [2020] NSWCCA 354 21 December 2020

Appeal

Admissibility of Evidence

Criminal Liability

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Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
Hearing dates: 16 September 2020
Date of orders: 21 December 2020
Decision date: 21 December 2020
Before: Gleeson JA at [1]
Price J at [76]
Wright J at [77]
Decision:
(1)   Extend the time for filing of the notice of application for leave to appeal to 3 June 2020.
(2)   Grant leave to appeal against conviction on ground 1.
(3)   Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child’s evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused’s misconduct in making threats to the child

Legislation Cited:
Crimes Act 1900 (NSW), ss 61A(1), 61M(2), 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Evidence Act 1995 (NSW), s 165B

Cases Cited:
Binns v R [2017] NSWCCA 280
Cabot (a pseudonym) v R [2018] NSWCCA 265
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
Lever (a pseudonym) v R [2018] NSWCCA 107
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
PT v The Queen [2011] VSCA 43
TO v R [2017] NSWCCA 12; [2017] 265 A Crim R 191
R v Arnold (1993) 30 NSWLR 73
R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60
R v Johns (1978) 2 NSWLR 259
R v Mai (1992) 26 NSWLR 371

Category: Sentence
Parties: Cabot (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
S Odgers SC (Applicant)
K Jeffreys (Respondent)
Solicitors:
Greg Walsh & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/204469
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the complainant or his brother, is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC XXX (Restricted)

Date of Decision:

13 September 2019

Before:

Traill SC DCJ

File Number(s):

2016/204469

Judgment

GLEESON JA: On 11 February 2019, the applicant was convicted at his second trial of six offences, being four counts of committing an act of indecency on a child under the age of 16 years, contrary to s 61M(2)…

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 Cabot (a pseudonym) v R (No 2)

Details

AGLC: Cabot (a pseudonym) v The Queen (No 2) [2020] NSWCCA 354
Case: [2020] NSWCCA 354
Decision Date: 21 December 2020

CaseChat Overview and Summary

Cabot was convicted on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years. The child was aged between 5 and 8 years at the time of the alleged incidents, which occurred between 2013 and 2016. The first complaint was made in January 2016, and a further complaint was made in May 2017. The child’s evidence displayed some uncertainty about the timing of some incidents. Cabot appealed against his conviction, seeking leave to appeal on the ground that the trial judge erred in declining to give a forensic disadvantage direction pursuant to s 165B of the Evidence Act 1995 (NSW). Cabot argued that he suffered significant forensic disadvantage because of the consequences of the delay, and that the trial judge ought to have directed the jury to find Cabot not guilty if they were satisfied that there was significant forensic disadvantage caused by the delay in reporting the alleged offences.
The court considered whether the trial judge erred in declining to give a forensic disadvantage direction. The court noted that the incidents in question occurred a significant period before the child made the first complaint. The court considered the significance of Cabot’s misconduct in making threats to the child, which contributed to the delay in making a complaint. The court found that the trial judge did not err in declining to give a forensic disadvantage direction. The court found that the trial judge’s assessment of the evidence and his direction to the jury were sufficient to ensure that Cabot received a fair trial.
The appeal was dismissed. The convictions and sentences were affirmed.

Orders