R v Adam Garry Maher - [2005] ACTSC 41

R v ADAM GARRY MAHER
[2005] ACTSC 41 (8 June 2005)

CRIMINAL LAW – trial by judge alone – offence of engaging in sexual intercourse with a person under the age of 16 years, namely 13 years – capacity to give evidence no issue - complainant over the age of 16 years when giving evidence – consent not an issue – freshness of complaint evidence no indication of truth or falsity – accused gave evidence – significant variance between accounts of complainant and accused - previous good character of accused – complainant’s character explored subject to ss 50 and 51 of Evidence (Miscellaneous Provisions) Act 1991 (ACT) – adverse impact of delay in reporting allegations - offence not proved.

Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1971 (ACT), s 64
Crimes Act 1900 (ACT), ss 50(c), 55(2)
Criminal Code 2002 (ACT), ss 13, 14, 22(2)
Evidence Act 1995 (Cth), ss 5a, 66
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 69, 70

Papakosmas v R (1999) 196 CLR 297
Weissensteiner v R (1993) 178 CLR 217
Azzopardi v R (2001) 205 CLR 50
Bridge v R (1964) 118 CLR 600
Longman v R (1989) 168 CLR 79

No. SCC 163 of 2004

Judge: Higgins CJ
Supreme Court of the ACT
Date: 8 June 2005

IN THE SUPREME COURT OF THE )
) No. SCC 163 of 2004
AUSTRALIAN CAPITAL TERRITORY )

R

v

ADAM GARRY MAHER

ORDER

Judge:  Higgins CJ
Date:  8 June 2005
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of “not guilty” be recorded.

On 31 August 2004 an indictment was presented by filing it with this Court. On 23 November 2004, the accused was arraigned on that indictment and entered a plea of not guilty. The accused elected for trial by judge alone by notice dated 19 October 2004.

That trial commenced before me on 14 February 2005. Evidence was taken that day and 15 February 2005. Submissions were made on 24 February 2005 and I reserved my decision on that day.

The Charge

The indictment charged that –

… between the 1^st day of November 2001 and the 6^th day of December 2001 at Canberra in the Australian Capital Territory ADAM MAHER engaged in sexual intercourse with C [name suppressed] who was then under the age of 16 years, namely 13 years.

Trial by Judge alone

The legislative provision prescribing this procedure is set out in s 68C of the Supreme Court Act 1933 (ACT) -

(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried…

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 Adam Garry Maher

Details

AGLC: R v Adam Garry Maher [2005] ACTSC 41
Case: [2005] ACTSC 41
Decision Date: 8 June 2005

CaseChat Overview and Summary

In the case of R v Adam Garry Maher, the defendant was charged with engaging in sexual intercourse with a person under the age of 16 years, specifically a 13-year-old. The matter was heard by a judge alone in the Magistrates Court of the Australian Capital Territory. The key issue before the court was whether the prosecution had established the defendant's guilt beyond reasonable doubt. A central aspect of the trial was the credibility of the complainant, who was over 16 years old when giving evidence. Consent was not disputed, and the timeliness of the complaint was also not challenged.

The court had to weigh the testimonies of both the complainant and the defendant, noting significant discrepancies between their accounts. The complainant's character was explored within the constraints of sections 50 and 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The defendant's previous good character was taken into account. Additionally, the adverse effects of the delay in reporting the allegations were considered. Ultimately, the court found that the prosecution had failed to prove the defendant's guilt beyond reasonable doubt.

Given the court's determination that the evidence did not establish the defendant's guilt, the outcome was a verdict of "not guilty." This verdict was recorded, effectively acquitting the defendant of the charges brought against him.

Orders

Orders of the court

A verdict of “not guilty” be recorded.

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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