Cabot (a pseudonym) v R (No 2)

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.