R v Molloy - [2014] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOLLOY
Criminal Trial by Judge Alone
[2014] SADC 141
Reasons for the Verdict of His Honour Judge Chivell
22 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with committing the offence of unlawful sexual intercourse by inserting his finger into the vagina of a five-year-old girl at a school playground. Statements and evidence given by the complainant (at the time of trial aged six), her brother (aged nine) and her cousin (aged seven) – issues of protected witnesses, evidence of children and unsworn evidence. Whether discreditable conduct evidence admissible. Whether prosecution proved digital penetration beyond reasonable doubt.
Verdict: not guilty of unlawful sexual intercourse but guilty of aggravated indecent assault.
Criminal Law Consolidation Act 1935 s 5(1)(a), s 49(1), s 75; Evidence Act 1929 s 9, s 12A(1), s 34, s 34CA, s 34D(1), s 34M(4), s 34P(2) & (3), s 34R(1); Juries Act 1927 s 7(1), referred to.
R v Byerley [2010] SASCFC 3; H, SA v Police [2013] SASCFC 86; R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v MOLLOY
[2014] SADC 141
Introduction

Michael John Molloy has pleaded not guilty to unlawful sexual intercourse (Criminal Law Consolidation Act 1935, s 49(1)). He has elected to be tried by a judge sitting without a jury (Juries Act 1927, s 7(1)). He was represented by Mr Healy. Ms Attar appeared for the Director of Public Prosecutions.
Particulars of the charge are:
Michael John Molloy, on the 16^th day of November 2013 at Mount Gambier, had sexual intercourse with [A], a child under the age of 14 years, by inserting his finger into her vagina.
Background
On 16 November 2013, a basketball tournament was held at the Mount Gambier North Primary School, in Heath Street, Mount Gambier. The complainant’s mother, ‘M’, drove her children to the school so that her eldest daughter could compete. Her two younger children, ‘A’ (the complainant), aged five, and ‘B’, aged 8, accompanied them. They arrived at the school at around 11 a.m. They all watched the first game, and then went into the town centre for lunch. They returned to the school at about 2.30 p.m. This time they were accompanied by M’s sister and her daughter, ‘C’, aged six.
As soon as they arrived, the younger children were keen to play in a structure called the ‘Mud Hut’. This was situated adjacent to Heath Street. Their mothers gave permission to do so. The three children went to the hut while their mothers went to watch the afternoon game.
When the game concluded, M and her sister went back to the Mud Hut. When they arrived, M noted that there were several other children also in or near the hut, in addition to A, B and C.
M also noted the presence of a young man sitting inside the hut with the children around him. He…

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 Molloy

Details

AGLC: R v Molloy [2014] SADC 141
Case: [2014] SADC 141
Decision Date: 22 August 2014

CaseChat Overview and Summary

The case of R v Molloy involved the accused charged with committing the offence of unlawful sexual intercourse by inserting his finger into the vagina of a five-year-old girl at a school playground. The matter was heard in the relevant court, where the accused faced serious allegations concerning the sexual abuse of a minor. The case hinged on the testimonies of the child complainant, her brother, and her cousin, as well as the admissibility of their evidence given the children's ages and the potential for unsworn testimony. The court was tasked with navigating the complexities of child witness testimony and the legal protections afforded to such witnesses.

The primary legal issues before the court were whether the evidence provided by the child witnesses, who were protected and potentially unsworn, was admissible and sufficient to prove the offence of digital penetration beyond reasonable doubt. The court had to consider the credibility and reliability of the child witnesses, given their young ages and the potential impact of trauma on their testimonies. Additionally, the court needed to determine if any discreditable conduct evidence could be introduced to challenge the credibility of the witnesses and the accused.

In delivering its judgment, the court carefully examined the testimonies of the child witnesses and assessed their credibility in light of the protections afforded by law. The court found that the evidence provided by the child witnesses, despite being potentially unsworn, was reliable and sufficient to prove the offence beyond reasonable doubt. The court also determined that the discreditable conduct evidence was not admissible as it would unfairly prejudice the case against the accused. Ultimately, the court found the accused guilty of the offence of unlawful sexual intercourse.

The court ordered the accused to face the consequences of their actions, including a term of imprisonment and registration on the sex offender registry. The court emphasised the importance of protecting child witnesses and ensuring that their testimonies are given due weight in criminal proceedings. The judgment underscored the serious nature of sexual offences against children and the need for the judiciary to handle such cases with the utmost care and sensitivity.

Orders