Cook v Flaherty (No 2) - [2021] SASC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G
Criminal Trial by Judge Alone
[2021] SADC 83
Reasons for the Verdict of her Honour Judge Chapman
9 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The offending is alleged to have occurred between May 2018 and December 2019. The complainant is the daughter of the accused’s partner and was aged seven to nine years at the relevant time. She alleged he touched her vagina and buttocks on multiple occasions. The evidence does not establish that the alleged unlawful sexual acts occurred.
Verdict: Not Guilty

R v G
[2021] SADC 83

The accused is charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act1935. The child is his partner’s daughter.
It is alleged that between 28 May 2018 and 28 December 2019, when the complainant was aged between seven and nine years, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely touching her vagina and buttocks on multiple occasions.
At the time of the alleged offence, the accused was living with the complainant’s mother and her three children, being the complainant (the eldest) and two sons. The accused is the biological father of the youngest son.
The touching is alleged to have occurred at the family home. It is alleged the accused touched the complainant when they were on his bed, on a couch in the living room, on a chair in the smoking room and on the complainant’s bed.
The complainant made a complaint to her maternal grandmother on 28 December 2019.
The complainant was interviewed by the police on 3 January 2020 and 25 July 2020.
The accused elected for trial by judge alone.
At trial, the prosecution called the complainant, the complainant’s grandmother and presented the accused’s father for cross examination.
In his defence, the accused gave evidence and called the complainant’s mother.
Verdict
After closing addresses were completed, I delivered my verdict and found the accused not guilty. I indicated I would publish reasons separately. These are my reasons.
The elements of the offence
The prosecution must prove each of the following four elements of the offence beyond reasonable doubt:
1.That during the period alleged, the accused was an adult.
There is no dispute the accused was an adult during the period of the alleged offending. He was in his mid-thirties.
2.That during the period alleged, the complainant was a child.
There is no dispute that the complainant was a child during the period of the alleged offending. She was aged between seven and nine years.
3.That during the period alleged, the accused knowingly maintained a relationship with the complainant.
There is no dispute that during the…

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 Cook v Flaherty (No 2)

Details

AGLC: Cook v Flaherty (No 2) [2021] SASC 83
Case: [2021] SASC 83
Decision Date: 7 July 2021

CaseChat Overview and Summary

In the matter of Cook v Flaherty (No 2), the accused, Cook, stood trial for the offence of maintaining an unlawful sexual relationship with a child. The complainant was the daughter of Cook's partner, aged between seven and nine years at the relevant time. The alleged incidents occurred between May 2018 and December 2019, following the complainant moving in with her mother, Cook, and her brothers due to the complainant's grandmother's hospitalisation. The central issue before the court was whether the complainant's testimony, provided through two police interviews and unsworn evidence in court, established the alleged unlawful sexual acts beyond a reasonable doubt.

The court carefully considered the complainant's credibility and the relevance of her unsworn testimony. Given the complainant's age and the complexity of the subject matter, the court found that she did not fully understand the obligation to be truthful in her sworn testimony. Despite this, the court found her unsworn evidence to be reliable and sufficient to establish the context of the alleged offences. The court was required to weigh the complainant's evidence against the legal criteria for proving the offence, including the nature and frequency of the alleged acts, the complainant's age, and the absence of any corroborating evidence.

After thorough deliberation, the court concluded that the complainant's evidence, while detailed and consistent, did not meet the requisite standard of proof beyond a reasonable doubt. The court found that there was insufficient evidence to establish the unlawful sexual acts alleged by the complainant. Consequently, the court acquitted the accused on the charge of maintaining an unlawful sexual relationship with a child. The court's decision was based on the overall reliability and sufficiency of the evidence presented, underscoring the high burden of proof required in such serious criminal cases.

Orders

Orders of the court

The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The offending is alleged to have occurred between May 2018 and December 2019. The complainant is the daughter of the accused’s partner and was aged seven to nine years at the relevant time. She alleged he touched her vagina and buttocks on multiple occasions. The evidence does not establish that the alleged unlawful sexual acts occurred.

Verdict: Not Guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The complainant moved to live with her mother, the accused and her brothers in June 2018 because the complainant’s grandmother attempted suicide and was taken to hospital. The complainant’s mother was in a defacto relationship with the accused. It is from that time until December 2019 that it is alleged the accused committed the unlawful sexual acts.Complainant’s evidence The complainant’s evidence comprised two audio visual records of interviews with police officers (on 3 January 2020 and 25 July 2020) and evidence in court. Both interviews were made pursuant to Part 17 Division 3 of the Summary Offences Act1953. I was satisfied of the matters set out in s 13BA(3)(b) of the Evidence Act 1929 and made an order pursuant to s 13BA(1) that the evidence of the complainant be admitted in the form of those two audio visual records.[1] [1] Exhibits P1 and P2. The complainant was nine when she was interviewed by Officer Weaver in the presence of Officer Kepka on 3 January 2020. She was also nine when she was interviewed by Brevet Sergeant Kelly on 25 July 2020. I consider that the police officers established good rapport with the complainant. The questioning of the complainant was appropriate and the complainant appeared to understand what was being asked. I gave permission pursuant to s 13BA(5)(b), for the complainant to be further examined, cross examined and re-examined. I found the complainant did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I was satisfied she understood the difference between the truth and a lie and told the complainant it was important to tell the truth. She indicated she would tell the truth. She gave unsworn evidence on 7 April 2020. Summary of allegations During her interviews and evidence in court, the complainant made the following disclosures:(a) general allegations about the accused ‘touching’ her;(b) the ‘last occasion’ when she was touched;(c)an occasion when she was touched in the accused’s bedroom which could have involved digital penetration of her vagina and bottom;(d)an occasion when she was watching the movie ‘Boss Baby’ with the accused;(e) an occasion in the smoking room;(f) an occasion in her bedroom when she was watching ‘Snow Pups’;(g)an occasion in the lounge room when she was watching ‘Britain’s Got Talent’;(h) an occasion when the accused ‘got his willy out’; and(i) conversation with the accused during which he invited her to touch him. I have not made any impermissible use of that evidence, nor was the evidence admitted pursuant to s 34P(2)(b) of the Evidence Act 1929. The allegations the subject of (c), (h) and (i) are not unlawful sexual acts for the purpose of the alleged offence. They are relevant and admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 in order to place the unlawful sexual acts in their full context and to assist in determining the complainant’s credibility and reliability (s 34P(1)).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.