The third element the state must prove beyond reasonable doubt is that at the time of the offence, [the complainant] was an incapable person. You will see that expression used, 'incapable person'. What does that mean at law? At law, an incapable person is a reference to a person who is mentally impaired so as to be incapable of guarding herself against sexual exploitation.
You won't see the words 'guarding against sexual exploitation' in the wording of the charge but the definition of 'incapable person' for the purposes of these charges is a person who is mentally impaired to a level so that they are incapable of guarding themselves against sexual exploitation.
A person is said to be mentally impaired if the person is intellectually disabled, suffering from a mental illness or brain damage. It has not been disputed in this case that [the complainant] is mentally impaired. However, what the state must also prove beyond reasonable doubt is the extent of the impairment is such that she is incapable of guarding herself against sexual exploitation.
The expression 'guarding against sexual exploitation' has its ordinary, everyday meaning and Ms Burrows has read out the dictionary definitions to you. 'Exploitation' means to take advantage of someone for your own benefit. Accordingly, 'sexual exploitation' means taking advantage of someone for your own sexual gratification.
To be capable of guarding oneself against sexual exploitation means you must be capable of taking the appropriate precautions against - or being able to resist such exploitation. The fact that someone is capable of saying no to something does not necessarily mean that they're capable of guarding against sexual exploitation. Earlier in the trial I gave you an example of very young children, so you imagine children at the age of, say, two or three. They may be able to say no to something, but you wouldn't suggest that such a child was capable of resisting or guarding against sexual exploitation. This is because young children like that are generally compliant or don't understand the nature of what is being requested of them and the consequences of what is being requested of them.
The state's case in this matter is that [the complainant] was so mentally impaired that she could not guard against sexual exploitation. She was not capable of resisting to propositions or suggestions to engage in sexual activity with the accused, Mr Cox. In other words, she was incapable of resisting inducements to engage in the sexual activity; incapable of making a proper decision about the proposition that she give sex in return for food or money.
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The fourth element that the state must prove beyond a reasonable doubt is that at the time of the offence the accused knew or ought to have known that [the complainant] was an incapable person. If you have got a - you probably don't have a pen, but make a mental note that this element is framed in the alternative. It's very significant that there is the word 'or'. The element has two aspects to it. Either the accused knew that [the complainant] was an incapable person or he ought to have known that she was an incapable person.
When you look at this wording, 'knew or ought to have known was an incapable person', you must remind yourself that an incapable person is a person who is mentally impaired so as to be incapable of sexual exploitation. Taking the first aspect of this element, the allegation that he knew she was an incapable person, the knowledge that the accused must have for this to be proven beyond reasonable doubt is not simply knowledge that [the complainant] was mentally impaired. He must have known that she was mentally impaired to such a degree that she was incapable of guarding against sexual exploitation by him.
To prove that Mr Cox had this knowledge that the extent of the mental impairment was to the level where [the complainant] was incapable of guarding against sexual exploitation involves proving what his state of mind or his knowledge was at the time. Knowledge in the absence of some admission by the accused can't be proved. You can't put a person's knowledge on the table and say, 'There it is. We have proved it.' You prove a person's knowledge, that is, their state of reasoning and understanding, from all the surrounding circumstances and then you infer that they had knowledge. You determine a person's knowledge generally from what they have said and all the surrounding circumstances.
I will have more to say about this later but the state asks you to infer from what the accused told the police and also from what you observed about the obvious signs of incapacity of [the complainant] and the fact that they lived in the same community together, that the accused must have that she was incapable to the point of not being able to guard against sexual exploitation.
Of course Mr Cox is unlikely to think in terms of the language used in the expression 'incapable of guarding against sexual exploitation'. I doubt whether he knows what the word 'exploitation' means. It is sufficient if the state proves beyond reasonable doubt that he knew that [the complainant] was mentally disabled, and (2) that because of her mental disabilities he would be able to take advantage of her in order to persuade her to give him sexual favours. There must be a knowledge on his part that she was disabled and that because of that he would be able to take advantage of her and get sexual favours that he wanted.
Alternatively - and this is where the alternative needs to be considered - if you are not satisfied beyond reasonable doubt as to whether Mr Cox had directed his mind to this issue, that is, the issue of whether [the complainant] was so incapable as to be unable to resist or guard against sexual exploitation, you can find this fourth element proved if you are satisfied beyond reasonable doubt that in all the circumstances Mr Cox ought to have known that [the complainant] was mentally impaired so as to be incapable of guarding against sexual exploitation (ts 208 - 211).