R v Mattsson - [2011] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MATTSSON
[2011] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Stanley)
21 October 2011
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - EVIDENCE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction - appellant convicted by jury of unlawful sexual intercourse and aggravated indecent assault against girl, six years of age.
Whether the trial Judge should have warned the jury in terms of s 12A in respect of the child's uncorroborated evidence - whether cogent reasons existed to doubt the reliability of the evidence - whether there has been a miscarriage of justice - whether the verdict cannot be supported having regard to the evidence.
Held: Appeal dismissed - s 12A direction was not requested - trial Judge precluded from giving a warning - no cogent reasons to doubt evidence - no miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56(1), s 353; Evidence Act 1929 (SA) s 12A, referred to.
M v The Queen (1994) 181 CLR 487, applied.
R v Warsap (2010) 106 SASR 264; K v Kyriacou [2000] SASC 312; Nudd v The Queen (2006) 80 ALJR 614; R v Heeremans [2007] SASC 187; Libke v The Queen (2007) 230 CLR 559, considered.

R v MATTSSON
[2011] SASCFC 114
Court of Criminal Appeal: Sulan, David and Stanley JJ

SULAN J: This is an appeal against conviction. The appellant was convicted by a jury in the District Court of unlawful sexual intercourse and aggravated indecent assault contrary to s 49(1) and s 56(1) respectively of the Criminal Law Consolidation Act 1935 (SA). AG, the complainant in both charges, was known to the appellant through family connections and the church. The period of the alleged offending was between 15 December 2006 and 12 February 2007 when AG was aged around six years old and the appellant was aged 40.
Background
AG gave evidence that the appellant picked her up from her home. The appellant drove her to a place in the scrub on a dirt road where he stopped the car, saying he needed to go to the toilet. He carried her to the boot of the car. The appellant pulled down her underpants, licked his finger and inserted it into her vagina. This act was the subject of the count of unlawful sexual intercourse. The appellant then put her back into the car. He told her that he would buy her an ice cream. He then placed her hands around his penis. That act is the subject of the count of aggravated indecent assault. The appellant gave sworn evidence at trial denying the allegations. The appellant stated that there was an occasion when he picked AG up at her home to take her to his…

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 Mattsson

Details

AGLC: R v Mattsson [2011] SASCFC 114
Case: [2011] SASCFC 114
Decision Date: 21 October 2011

CaseChat Overview and Summary

The appellant, R v Mattsson, appealed against a conviction for unlawful sexual intercourse and aggravated indecent assault against a six-year-old girl. The appeal was heard by the Full Court of the Supreme Court of [Jurisdiction - implied, not stated].

The primary legal issues before the court were whether the trial judge erred by not providing a warning to the jury under section 12A of the relevant legislation regarding the child's uncorroborated evidence, whether there were cogent reasons to doubt the reliability of the child's evidence, and whether a miscarriage of justice had occurred, rendering the verdict unreasonable or insupportable by the evidence.

The court dismissed the appeal, holding that a section 12A direction was not requested by the defence at trial, which precluded the trial judge from giving such a warning. Furthermore, the court found no cogent reasons to doubt the reliability of the child's evidence and concluded that no miscarriage of justice had occurred. The evidence presented was deemed sufficient for the jury to be satisfied of the appellant's guilt beyond reasonable doubt.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, having reviewed all the evidence, it is not possible to say that the jury must have entertained a doubt about the appellant’s guilt. It was open, on the evidence, to the jury to be satisfied beyond reasonable doubt. I reject this ground of appeal.Conclusion I would dismiss the appeal. DAVID J: I would dismiss the appeal. I agree with the reasons of Sulan J. STANLEY J: I would dismiss the appeal. I agree with the reasons of Sulan J.

Ratio Decidendi

Legal Principle Established

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