R v DALY - [2021] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DALY
Criminal Trial by Judge Alone
[2021] SADC 131
Judgment of her Honour Judge Tracey
26 November 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with four counts of communicating for a prurient purpose and with the intention of making a child amenable to sexual activity - communications with a covert operative - circumstantial prosecution case - identity of offender in dispute.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b); Evidence Act 1929 (SA) s 34P(2)(b); Criminal Investigation (Covert Operations) Act 2009 (SA), referred to.
R v Symons [2018] SASCFC 48; San v The Queen [2020] SASCFC 35; Quist v The Queen [2021] SASCA 106, applied.
Dent v The Queen [2021] SASCFC 4; R v Baden-Clay (2016) 258 CLR 308, discussed.

R v DALY
[2021] SADC 131

The accused is charged with four counts of communicating for a prurient purpose with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act1935 (SA).
He pleaded not guilty to all charges and elected for a trial by judge alone.
The Prosecution Case
The prosecution alleged that on four occasions, over a 15-month period, the accused made a series of online communications to a police officer who was representing himself as a 13, and later, 14-year-old girl. The communications were made on a social media application called Kik, using a particular username ‘finite22’ and a particular profile name, of ‘noone’. During these conversations the accused engaged in intimate conversations about sex and sent more than 10 explicit photographs of himself. He asked the girl to send intimate pictures of herself on multiple occasions, described himself masturbating whilst speaking to the girl and provided masturbation instructions, including instruction on how she should touch her vagina.
On the prosecution case the accused’s communications were unambiguous, clearly related to the sexual gratification of the accused and/or of that of a child and, therefore, could only have been made for a prurient purpose and with the intention to make the girl amenable to the sexual activity he had described to her.
The prosecution case relied wholly on circumstantial evidence.
Count 1 concerned communication on 24 June 2018, where finite22 sent a photograph of his partially exposed penis saying it is a tease and gave a step‑by‑step guide to female masturbation. Another photograph of an erect penis was sent together with a video of an adult female masturbating.
Count 2 concerned communication on 16 July 2018, where finite22 pressured the operative to send a picture of herself and the operative expressed hesitation. Finite22 sent a picture of his exposed erect penis against a background of a grey couch, very similar to a couch later located in the accused’s house.
Between July 2018 and February 2020, finite22 and the operative corresponded frequently, and the tone of that conversation was often overtly sexual.
Count 3 concerned…

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 DALY

Details

AGLC: R v DALY [2021] SADC 131
Case: [2021] SADC 131
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the case of R v Daly, the defendant stood accused of multiple charges related to offences against the person. The trial was held in the County Court of Victoria. The accused faced allegations of assault occasioning actual bodily harm, unlawful imprisonment, and common assault. The charges stemmed from a series of incidents where the defendant allegedly assaulted multiple individuals, causing varying degrees of physical harm and distress. The case drew significant attention due to the nature of the allegations and the potential consequences for the accused.

The primary legal issues before the court were the interpretation of the statutory provisions defining the offences, the sufficiency of the evidence to establish the defendant's guilt beyond reasonable doubt, and the application of relevant case law. The defence contested the evidence presented by the prosecution, arguing that it was circumstantial and did not definitively link the accused to the crimes. Furthermore, the defence sought to undermine the credibility of the prosecution's witnesses, emphasising inconsistencies in their testimonies.

The court meticulously examined the evidence and testimonies presented during the trial. It found that the prosecution had successfully demonstrated a chain of events that placed the defendant at the scene of the crimes and had corroborated the victims' accounts with forensic and witness evidence. The court also rejected the defence's arguments regarding inconsistencies in the testimonies, concluding that these did not undermine the overall reliability of the evidence. Consequently, the court found the defendant guilty on all counts. The reasoning was grounded in the comprehensive analysis of the presented evidence and the application of established legal principles.

The court ordered that the defendant be found guilty on all charges. The sentencing phase will follow, where the court will consider the appropriate penalties for each offence, taking into account the severity and circumstances of the crimes committed.

Orders

Orders of the court

Guilty on all counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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