Court of Criminal Appeal: Mullighan, Williams and Gray JJ
MULLIGHAN J The appellant was found guilty by verdicts of the jury of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness. He was sentenced to imprisonment for 25 years with a non-parole period of 18 years. He appeals against the convictions for those offences.
He was charged on the same Information with 15 counts of sexual offences in relation to five alleged victims and the count of offering a benefit. All of the sexual offences were alleged to have occurred during the period from 1983 to 1985, later shown to be 1986, when the appellant was a “nipper” coach at a surf life saving club at a beach at a suburb of Adelaide (“the Club”). The alleged victims were all young boys who were trainee surf life savers known as “nippers”. The offending was alleged to have commenced with respect to each of the boys when aged about eight or nine years. Four of the boys were members of the Club. The other came into contact with the appellant as a member of the Nipper State Team of which the appellant was a coach. Some of the boys were members of the Club for a shorter period of time than the others. The charge of offering a benefit was alleged to have occurred in 1999 shortly before the appellant was charged with the sexual offences.
At all material times, the appellant was a Magistrate. He sat in various courthouses, including at Glenelg, which was near the Club and at Victor Harbor which is near surf beaches south of Adelaide. He was aged 56 years at the time of the trial. He had been a Magistrate for about 25 years. He retired before the trial. He had also been the Chairman of the South Australian Police Disciplinary Tribunal for about 25 years.
It was the prosecution case that whilst the appellant was actively involved with a very large number of boys training as nippers over some years, he developed a close involvement with a small group of boys at material times of which each of the alleged victims were members at various times. There was one clear favourite who was D. His brother was also a member of the group but was not involved in any sexual conduct. He treated the boys in this small group differently than others. It was the prosecution case that there was sexual behaviour on the part of the appellant towards, and involving, the five boys which took the form of words and actions. Each of these boys, at various times, were part of the small group. The appellant lived at Gawler and had a van. On occasions he collected the boys from their homes and took them to training at the Club and to carnivals at other beaches.…
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.
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Details
AGLC
R v Liddy [2002] SASC 19
Case
[2002] SASC 19
Decision Date
CaseChat Overview and Summary
In the case of R v Liddy, the appellant faced charges related to alleged sexual abuse of minors, with multiple complainants providing evidence against him. The trial lasted for 24 days, resulting in the jury returning verdicts of not guilty on several counts and guilty on others. The appellant, who was a Magistrate and an official of a surf lifesaving club, was accused of exploiting his position to gain the trust of the boys and their parents, thereby facilitating the alleged abuse. The court was tasked with determining the validity of the charges brought against the appellant and assessing the evidence provided by the complainants.
The central legal issues revolved around the sufficiency and credibility of the evidence presented by the complainants and the specific charges that were proven beyond reasonable doubt. The court had to consider whether the appellant's conduct, as described, amounted to the criminal offences charged and whether the age of the complainant in one particular count was established with the requisite standard of proof.
The court meticulously reviewed the submissions, material evidence, and the trial's entirety, finding that the Crown's case was overwhelming for the counts resulting in guilty verdicts. The verdicts were deemed safe and satisfactory. However, concerning one count, despite a strong case of abuse, the court concluded that the complainant's age was not proven beyond reasonable doubt, leading to the exclusion of that count. The reasoning of the primary judge was affirmed, and the appeal was dismissed with respect to the remaining counts.
The final orders of the court upheld the convictions on the specified counts while excluding one particular count due to insufficient evidence regarding the complainant's age. The appeal was dismissed, and the original trial's outcome was largely maintained, barring the excluded count.
Orders
Orders of the court
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Background
Background to the litigation
The trial occupied 24 days. The jury returned verdicts of not guilty on Counts 1, 4, 6, 8 and 12 as well as on Count 13 and verdicts of guilty on all other charges.Background Before turning to the grounds of appeal, I mention the evidence of the five complainants of the alleged sexual conduct by the appellant towards them which was not the subject of charges and of the nature of the relationship between the appellant and the complainants. The appellant joined the Club at about the same time he was appointed a Magistrate in 1974. He was actively involved in providing information to schools about life saving and addressed groups of students from time to time, whereby boys were recruited to the Club. That is how W and some other boys joined the Club and became nippers. It was the prosecution case that he used and abused his position as a Magistrate and an official of the Club to gain the friendship and trust of the boys and their parents. He developed cordial relationships with parents of the boys. The evidence established that he wrote to some of the parents on the official letterhead of the Court of Summary Jurisdiction at Glenelg, as it was then known, offering to collect boys from their homes and take them to training. The mother of a complainant said in evidence that one of the reasons she allowed her son to be part of the life saving programme was because he was taken to training by “someone reliable”. She said that the appellant was very friendly and she and her husband were “perfectly relaxed about letting [her son] go with him”. Consequently, the appellant was able to spend a considerable amount of time with the boys alone during daytime and overnight. As has been mentioned, four of the boys, W, Y, R and D, were members of the Club and came under the influence of the appellant and C was a member of another club and under his influence in the context of the State Team. Other boys also came under his influence but there was no allegation of sexual conduct towards them. However, some of them were part of the group which went training and surfing with the appellant and stayed overnight on occasions at the courthouses. W joined the Club when he was aged 9 years, probably in the 1983/1984 season. R joined in 1982/83 and it is likely that D also joined in that season. Y joined during the following season and C came into contact with the appellant in the 1983/1984 season. In addition to surf lifesaving activities, the appellant took the boys to places and activities simply so that they could have fun. They went to beaches for swimming, surfing and to use surf skis which he provided. He took some boys paddling on the River Torrens and to islands off the south Coast. He took them to the Greenhills Adventure Park and the Magic Mountain at Glenelg, target shooting in the Goolwa sandhills, shopping for comic books, go-karting and to the movies. He allowed them to ride small motor cycles mainly at his beach house and to set off fireworks. He had a video player with a large screen at the Glenelg Courthouse upon which the boys watched videos. Only boys were included in these activities, even though girls were nippers at the Club, although C told the jury that he recalled one girl going with the group on a day trip on one or two occasions.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
MULLIGHAN J
GRAY J
I have reviewed the submissions advanced in support of this ground of appeal, the material referred to and the evidence led at the trial in its entirety.[38] On each count on which a verdict of guilty was returned the Crown case was overwhelming.[39] The verdicts were safe and satisfactory.[40][38] Mullighan J has addressed the particular complaints in detail see [310-457] [39]I exclude count 15. Although there was an overwhelming case with respect to the abuse, the subject of count 15, the age of the complainant was not proved beyond reasonable doubt[40] M v The Queen(1994) 181 CLR 487 at 492-493Conclusion I agree with the reasons and orders proposed by Mullighan J.