R v Galliford - [2005] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GALLIFORD
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Chivell
26 October 2005
CRIMINAL LAW
PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of Indecent Assault.
Trial by Judge without Jury - consideration of permissible use of uncharged conduct - consideration of use of complaint evidence - evidence of distress - verdict guilty.
Juries Act 1927 (SA) s7; Criminal Law Consolidation Act 1935 s57(2); Evidence Act 1929 s9(1), s12A, s71A(4), s34I(5), referred to.
R v IK (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56; Longman v R (1989) 168 CLR 79; Question of Law No 1 (1993) 59 SASR 214, considered.

R v GALLIFORD
[2005] SADC 149
Introduction

The accused is charged on Information with indecent assault. The charge reads as follows:
Mark Galliford on the 10 February 2004 at West Richmond, indecently assaulted [T], a person of the age of 11 years.
He pleaded not guilty.
The accused elected to be tried by judge sitting without a jury (Juries Act 1927, s 7).
Rule 9 Application
Before the trial commenced, there was an application by the defence pursuant to Rule 9 of the District Court Criminal Rules, that certain evidence be excluded. Ms Boord, counsel for the Director of Public Prosecution, conceded that the majority of the items referred to in the application should not be led. As to the balance, the issue of previous uncharged sexual misconduct by the accused towards the alleged victim was ruled admissible (see Reasons for Ruling given on 18 October 2005).
Preliminary Directions
I direct myself that the elements of the offence of indecent assault are that:
·there must be an intentional touching of the alleged victim by the accused.
·the touching must occur in circumstances of indecency.
Each of these elements must be proved beyond reasonable doubt. There is no requirement that the touching need be hostile or cause pain or harm to the alleged victim.
“Indecency” is conduct that is unbecoming and offensive to common propriety (R v Drago (1992) 63 ACrimR 59, according to “right thinking members of the community” (R v Court [1989] AC 28)). There was no suggestion in this case that the alleged victim’s allegations, if proved, did not amount to an indecent assault.
The fact that the prosecution alleges that the alleged victim was a person of the age of 11 years is a material particular in the charge, but is not an element of the offence (R v Baxter [1999] SASC 403 (CCA)).
Because the alleged victim was under the age of 18 years, she was not capable of consenting to an indecent assault (Criminal Law Consolidation Act 1935 (SA), s 57(2)). There is no issue of consent in this case, in any event.
Case for the Prosecution
Having regard to s 71A(4) of the Evidence Act 1929 (SA), the identity…

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 Galliford

Details

AGLC: R v Galliford [2005] SADC 149
Case: [2005] SADC 149
Decision Date: 26 October 2005

CaseChat Overview and Summary

The District Court of South Australia heard a criminal case against Mark Galliford, who was charged with indecent assault. The complainant, referred to as T, was 11 years old at the time of the alleged incident. The accused pleaded not guilty and elected to be tried by a judge alone. The court heard evidence from T, who detailed an incident where the accused allegedly indecently assaulted her at the home of Elizabeth Wojciak. T testified that the accused grabbed her, pulled her into the house, and touched her inappropriately. The court also considered uncharged conduct alleged by T, where the accused allegedly touched her breasts on two separate occasions prior to the main incident. The accused denied all allegations and provided his version of events, which the court found to be unconvincing. The court found T’s evidence to be credible and consistent, and rejected the accused’s evidence. The court concluded that the charge of indecent assault was proved beyond reasonable doubt and found the accused guilty.

Orders