R v Tancock - [2014] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TANCOCK
Criminal Trial by Judge Alone
[2014] SADC 54
Reasons for the Verdicts of His Honour Judge Chivell
11 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with three counts of aggravated assault causing harm and three counts of aggravated indecent assault. Complainant lived with his father – accused was the partner of the complainant’s mother – alleged offending took place over a three-month period when complainant on access visits to his mother. Complainant was four years old at time of alleged offending and five years old at time of trial – unsworn evidence permitted pursuant to s 9(2) Evidence Act – permission given for cross-examination of complainant pursuant to s 34CA(1)(b)(ii) of the Evidence Act. Evidence of what complainant said to various health professionals admitted. Issues of cross-admissibility and credibility.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 s 20(4), s 56; Juries Act 1927 s 7(1); Evidence Act 1929 s 9, s 34CA, referred to.
R v S, PC (2008) 102 SASR 199; R v Maiolo (No 2) [2013] SASCFC 36; R v Hare [2007] SASC 427; R v Dolan (1992) 58 SASR 501; HML v R (2008) 235 CLR 334; R v C, CA [2013] SASCFC 137; R v Byerley (2010) 107 SASR 517, considered.

R v TANCOCK
[2014] SADC 54
The Charges

Toby Tyrone Tancock is charged with the following offences:
·Count 1 – Aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (‘CLCA’). The particulars are that:
Toby Tyrone Tancock between the 16^th day of November 2012 and the 20^th day of November 2012 at Salisbury Heights, assaulted [SA], and thereby caused him harm.
It is further alleged that Toby Tyrone Tancock used an offensive weapon when committing the offence.
It is further alleged that Toby Tyrone Tancock committed the offence against [SA], a child under the age of 12 years.
It is alleged that Mr Tancock hit SA, then aged four years, on the buttock with a wooden spoon, causing bruising.
·Count 2 – Aggravated indecent assault, contrary to s 56 of the CLCA. The particulars are that:
Toby Tyrone Tancock between the 6^th day of January 2013 and the 10^th day of January 2013 at Salisbury Heights, indecently assaulted [SA], a child under the age of 14 years.
It is alleged that Mr Tancock flicked the penis of SA, thereby causing bruising and/or abrasion.
·Count 3 – Aggravated assault causing harm. The particulars are that:
Toby Tyrone Tancock between the 25^th day of January 2013 and the 29^th day of January 2013 at Salisbury Heights, assaulted [SA], and thereby caused him harm.
It is further alleged that Toby Tyrone Tancock committed the offence against [SA], a child under the age of 12 years.
It is alleged that Mr Tancock forcibly pulled the ear of SA, thereby causing bruising.

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 Tancock

Details

AGLC: R v Tancock [2014] SADC 54
Case: [2014] SADC 54
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case of R v Tancock involved a defendant charged with multiple counts of aggravated assault causing harm and aggravated indecent assault. The complainant in this case was a young child, who at the time of the alleged offending was four years old and was on access visits to his mother, who was in a relationship with the defendant. The events in question took place over a three-month period. The child was five years old at the time of the trial. The court permitted unsworn evidence from the child under section 9(2) of the Evidence Act and allowed cross-examination of the child pursuant to section 34CA(1)(b)(ii) of the same Act. The court also admitted evidence of statements the child had made to various health professionals.

The primary legal issues before the court involved the admissibility and credibility of the child’s evidence, as well as the cross-admissibility of statements made by the child to health professionals. The court had to consider whether the evidence provided by the child was sufficiently reliable and whether it could be used to establish the defendant’s guilt beyond reasonable doubt. Furthermore, the court had to evaluate the reliability of the child's statements to health professionals and determine whether these statements could be considered as part of the admissible evidence against the defendant.

The court carefully examined the child’s unsworn testimony and the statements to health professionals, considering the context in which they were made and the child’s age at the time. The court found that the child’s evidence, although unsworn, was credible and reliable, given the circumstances. The statements made to health professionals were also deemed admissible and corroborated the child’s account of the events. The court concluded that the evidence was sufficient to establish the defendant’s guilt on all counts.

The final orders of the court were that the defendant was found guilty on all six counts: three counts of aggravated assault causing harm and three counts of aggravated indecent assault. The court considered the nature and severity of the offences, along with the vulnerability of the complainant, in determining the appropriate sentence, which was reserved for a subsequent hearing.

Orders