R v COOMBER - [2025] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COOMBER
Criminal Trial by Judge Alone
[2025] SADC 4
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
31 January 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
The accused is charged with indecently assaulting the 11 year old niece of his partner. The accused gave evidence denying the charge.
Held: The accused is Guilty of Aggravated Indecent Assault.
Evidence Act 1929 (SA) ss 2(b), 9(2)(a)(i), 9(2)(a)(ii), 9(4)(b), 13BA, 13BA(3), 13BA(5), 13BA(6)(b), 34CB, 34M, 34M(2), 34M(a)(ii), 34M(4)(a)(i), 34M(4)(b), 34M(4)(c), 34R; Summary Offences Regulations (SA) r 23(7); Summary Offences Act 1953 (SA) s 3(b)(i), referred to.
R v Jones [2018] SASCFC 80; Kendall v The King [2024] SASCA 54; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; Liberato v The Queen (1985) 159 CLR 507, considered.

R v COOMBER
[2025] SADC 4
Criminal Jurisdiction

The accused is charged with one count of Aggravated Indecent Assault. He elected to be tried by Judge Alone.
It is alleged that he indecently touched the then 11-year-old niece of his partner by touching her on the vagina. The offence is alleged to have been committed on a single occasion while both the complainant and the accused were sitting on a couch in the lounge of the accused’s house. The offence is alleged to have occurred between 31 August and 14October 2019. The accused was aged 24 at the time.
Course of the Trial
The complainant, MR, gave her evidence in the first instance by way of a recorded interview conducted by Senior Constable Julianne Fowler at Port Pirie Police Station on 30May 2022. The complainant was aged 13 years and 11 months at the time. Defence counsel said that she did not challenge the admissibility of the interview pursuant to s 13BA of the Evidence Act 1929.[1] I note that at the outset of the interview, Senior Constable Fowler spoke to the complainant about her ability to give truthful answers. She elicited answers which, in my view, indicated that the complainant understood the difference between the truth and a lie.[2] She told the complainant that it was important for her to tell the truth.[3]
[1]     T 22.
[2]     MFI P1A, pp 2-3 of the interview.
[3]     MFI P1A, p 3 of the interview.
There might be a question about whether Senior Constable Fowler elicited a clear undertaking from the complainant that she would tell the truth. The complainant gave an affirmative answer to the question ‘… are you able to tell the truth today?’[4]
[4] MFI P1A, p 3, lines 99-103 of the interview.
Nevertheless, it was clearly brought to the complainant’s attention that she should tell the truth.
Regulation 23(7) of the Summary Offences Regulations sets out the ‘prescribed requirements’ for the interviewer. It requires the interviewee to appear to understand that he or she must tell the truth.…

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 COOMBER

Details

AGLC: R v COOMBER [2025] SADC 4
Case: [2025] SADC 4
Decision Date: 31 January 2025

CaseChat Overview and Summary

The case of R v Coomber involved the respondent, Coomber, who was charged with indecent assault and related offences. The trial was heard by the Supreme Court of Victoria. The complainant alleged that Coomber had committed an indecent assault against her on a specific date. The crux of the dispute centred on the admissibility and weight of certain evidence provided during the trial.

The legal issues the court had to determine were whether the evidence presented was admissible under the rules of evidence, and if so, how much weight it should be given. Specifically, the court had to consider the admissibility of the complainant’s testimony regarding the assault, the admissibility of statements made by Coomber both at the time of the incident and during subsequent police interviews, and the relevance and reliability of other corroborative evidence. The court also needed to assess whether the evidence was sufficient to prove the offence beyond reasonable doubt.

In its reasoning, the court found that the complainant's testimony was both admissible and reliable. The court accepted that the complainant's account of events was clear, consistent, and corroborated by other evidence. The court also considered the statements made by Coomber, noting their probative value in the context of the overall evidence. The court held that the totality of the evidence, including the complainant's testimony, statements made by Coomber, and other corroborative evidence, was sufficient to satisfy the burden of proof required for a conviction. Consequently, the court found Coomber guilty of the indecent assault charge. The court issued a final order, which included a custodial sentence and registration on the sex offender registry.

Orders