David Gillard Cook v The Queen - [2014] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0176

DAVID GILLARD COOK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2014
DATE OF JUDGMENT:	11 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 220
JUDGMENT APPEALED FROM:	R v Cook (Unreported, County Court of Victoria, Judge Mullaly, 20 September 2012)

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CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of committing an indecent act with a child under 16 and acquitted of seven other sexual offences –Credibility of complainant's evidence – Whether conviction is unsafe and unsatisfactory – Appeal allowed – Conviction quashed and judgment and verdict of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Ms S M K Borg	Mr C Hyland, Solicitor for Public Prosecutions

OSBORN JA:
PRIEST JA:
BEACH JA:

Introduction

Following an 18 day trial in the County Court, by majority verdict a jury convicted the appellant of committing an indecent act with a child under 16 (charge 1). The jury, also by majority verdict, found the appellant not guilty of seven further charges — three of committing an indecent act with a child under 16 (charges 4, 6 and 7), and four of sexual penetration of a child under 16 (charges 2, 3, 5 and 8). ‘MBV’, who had been charged jointly with the appellant with respect to charges 6, 7 and 8, was also acquitted on those charges.

By leave granted by Nettle and Neave JJA on 23 May 2014, the appellant has appealed on the following ground:

1. The conviction on charge 1 was unreasonable in light of the acquittals on charges 2, 3, 4, 5, 6, 7 and 8.

For the reasons that follow, we would allow the appeal, quash the conviction and enter a judgment and verdict of acquittal.

Factual background

The complainant, ‘KPR’, was born on 7 March 1996. During the period embraced by charge 1 — 1 January 2009 to 31 December 2009 — she was aged 12 to 13 years. Throughout the period in charges 2 to 5 — 20 December 2009 to 11 February 2010 — she was aged 13 years. And in the period alleged in charges 6, 7 and 8 — 11 February 2010 to 26 April 2010 — she was aged 13 to 14 years.

The appellant was born on 14 December 1963. He was aged 46 to 47 years during the period covered by the charges.

MBV, the appellant’s co-accused on charges 6, 7 and 8, was aged 17 to 18 years in the period when the offences were alleged to have occurred.

KPR’s initial complaint to police was made when she was visiting her father in Sydney. She participated in an ‘ERISP’ interview with NSW police on 1 February 2011, which was led by the prosecution on the appellant’s trial as part of her evidence in chief. KPR also gave evidence at a…

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 David Gillard Cook v The Queen

Details

AGLC: David Gillard Cook v The Queen [2014] VSCA 220
Case: [2014] VSCA 220
Decision Date: 11 September 2014

CaseChat Overview and Summary

In the matter of David Gillard Cook against The Queen, the appellant stood convicted of a charge of committing an indecent act with a child under 16 years of age, while being acquitted of seven other sexual offences. The case was brought before the court on appeal, with the appellant challenging the safety and satisfaction of the conviction. The appeal centred on the credibility of the complainant's evidence and whether it was sufficient to uphold the conviction.

The legal issues for the court to determine were whether the evidence provided was sufficient to sustain the conviction and if the conviction was indeed unsafe and unsatisfactory. The court needed to consider the reliability of the complainant's testimony, as well as the strength of the prosecution's case against the appellant. Additionally, the court had to assess whether the trial judge had correctly applied the legal principles when evaluating the evidence presented.

The court, after carefully reviewing the evidence and the trial judge's approach, found that the conviction was indeed unsafe and unsatisfactory. The court held that there were significant inconsistencies in the complainant's evidence, which cast doubt on its reliability. As a result, the court determined that the conviction could not be sustained, and the appeal was allowed. Consequently, the conviction was quashed, and the judgment and verdict of acquittal were entered in respect of the other seven sexual offences.

Orders