R v Maunder
[2010] SADC 132
•28 October 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v MAUNDER
[2010] SADC 132
Reasons for Ruling of His Honour Judge Chivell
28 October 2010
CRIMINAL LAW
Factual dispute – defendant pleaded guilty to having sexual intercourse with a person under 14 – finding that defendant has not established on the balance of probabilities that he believed at the time of the offence that the victim was 18 or 19.
Criminal Law Consolidation Act 1935 (SA) s 49(1), referred to.
R v Bukvic [2010] SASC 195; R v Stevenson & Ors (1984) 35 SASR 237; Weininger v R [2003] HCA 14, applied.
R v MAUNDER
[2010] SADC 132
Anthony Scott Maunder pleaded guilty in the Christies Beach Magistrates Court to having sexual intercourse with a person under 14, contrary to s. 49(1) of the Criminal Law Consolidation Act 1935. The offence occurred between the 1st day of January 2008 and the 24th day of January 2008. The information was amended to allege those dates by leave of Mr PY Wilson SM on 28 July 2009. Mr Maunder was committed for sentence to this Court.
There is no dispute that the victim was at all relevant times aged 13 years. The evidence is that she turned 14 on 24 January 2008.
Mr Maunder asserts that he believed that she was aged 18 or 19 years at the time of the offence.
If Mr Maunder did believe that, it would be a substantial factor in mitigation of the penalty to be imposed. Mr Maunder bears the onus of proving that factor on the balance of probabilities (R v Stevenson & Ors,[1] Weininger v R,[2] R v Bukvic[3]).
[1] (1984) 35 SASR 237
[2] [2003] HCA 14 at [22]
[3] [2010] SASC 195
Notwithstanding that Mr Maunder bore the onus of proof, Ms Burrows, counsel for the Director of Public Prosecutions, opted to call her witnesses first.
The victim, to whom I will refer as “V”, was called first. Her evidence, in summary was as follows :-
·she and her family and friends were at the Port Noarlunga Jetty for New Years Eve 2007/2008;
·she and her friends “T”, “K” and “C” went for a walk on the jetty;
·Mr Maunder and his friend “M” were fishing on the jetty;
·one of them asked her how old she was. She said she was 13. Both Mr Maunder and M said that they did not believe her and thought she was around 18;[4]
·there is some inconsistency in her evidence about whether she showed the two men her Student ID card then – in her statement to the police she said that she showed Mr Maunder the card then, but in evidence she said that she did not have it with her at that time, and showed him on a later occasion;
·T and K both also told the two men that V was 13;
·V gave Mr Maunder her telephone number before she left;
·a few days later, Mr Maunder telephoned her and there were several further telephone calls after that;
·on a day which she identified as being before 18 January 2008 (which she fixed by a date on which she changed her hair style and colour), she said Mr Maunder telephoned her, they agreed to meet, she and C and Mr Maunder went out in his car for a drive;
·on another occasion Mr Maunder picked her up in the car and they went out in the car by themselves. They left about 11.30 pm and drove to The Bluff near Victor Harbor. She said that there was a discussion about her age in the car, and that she showed him her Student ID card. She said after this they had sexual intercourse in the car;
·on the next night they went out again and went to a beach near Victor Harbor where sexual intercourse again occurred in the car.
[4] T 44
On V’s account, then, she told Mr Maunder on at least two occasions that she was 13 years old: once on the jetty, and once in the car, and that she had showed him her Student ID card once.
In cross examination, a number of matters were put to V by Mr Cole, counsel for Mr Maunder:-
·the allegations against Mr Maunder first came to light after V’s mother found a number of pornographic pictures of her on her mobile phone;
·rather than verbally explain her behaviour, V wrote a letter of explanation to her mother, in particular explaining how the mobile phone pictures were sent to a number of young men including Mr Maunder. The letter is Exhibit D2;
·a number of assertions were made in the letter which were inconsistent in substantial ways with her testimony before me;
·in particular, in the letter V alleged that Mr Maunder pulled her into the car against her will, took her to The Bluff and raped her;[5]
·V repeated these allegations to the police some time later. She said her mother had gone to the police without her knowledge. V acknowledged in evidence that these allegations were untrue and that she made them in the letter and to the police because she “wasn’t ready” to speak to the police at that stage[6] – basically, it was all her mother’s idea;
·these allegations were later withdrawn because she was then “ready to talk;[7]
·another young man was also prosecuted for having unlawful sexual intercourse with V. When it was put to her that V had also told this other man that she was 18 or 19 she replied “probably not, no, I don’t know, most likely not”.[8] When asked if she had told this young man that she worked as a stripper she said, “No, I don’t think so”.[9] These conversations allegedly happened in about the same month as the offence before me now, that is January 2008.
[5] T 30
[6] T 28
[7] T 31
[8] T 41
[9] T 41
I formed a very poor impression of V’s credibility and reliability. Her evidence was contrived and unconvincing. She gave me the impression of being manipulative and prepared to lie when it suited her. There were glaring inconsistencies in her accounts to the police and before the Court. I consider that her evidence deserves little weight.
T also gave evidence. She confirmed V’s evidence that when they were on the jetty she told Mr Maunder that she was 13, and that he was saying “You don’t look it”. She said it was Mr Maunder and V who were flirting, he was saying that she didn’t have the legs of a 13 year-old. She said she would “show him her birth certificate or something like that”.[10]
[10] T 69
I was generally impressed with T’s evidence. She seemed a much more reliable and sensible girl than V. She said that she remembered the events on the jetty because she was uncomfortable with what was occurring and was concerned for V’s welfare at the time.[11] It was obvious to her that Mr Maunder was much older than V.
[11] T 82
K also gave evidence. She was two years younger than V and T. I did not find her evidence as reliable as T’s. Her evidence was vague and she struggled to recall specific details of what occurred and I found that there was some risk of reconstruction of these events. K purported to corroborate V’s evidence about her telling the young men on the jetty that she was 13, and that the men were indicating that they did not believe her. She asserted that the conversation was with both Mr Maunder and M. But I am not confident that she is reliable on this. In cross examination, K conceded that she had discussed these events with V the day after they occurred.
Mr Maunder gave evidence on his own behalf. In summary, he said:-
·he is now 29 years of age and was 27 at the time of these events;
·he gave evidence of his schooling and of his employment history;
·he told me that he was separated from his partner and they had two children aged 7 and 3;
·he said that on 31 December 2007 he was at the jetty with M and that they were fishing;
·he said that he had taken 2 cartons, each containing 24 cans (of Jim Beam and Coke), and they were drinking these cans as the evening progressed;
·there was some joking around on the jetty involving one of the girls asking them to throw a fish at the two other girls who were following, one of whom was V. Mr Maunder asserted that it was M who was doing all the talking with the girls. M was a younger man than him. He said that he was fishing and “wasn’t really paying much attention.”[12]
·Mr Maunder asserted that he did not hear V say that she was 13 – he thought that M had asked her how old she was, and that she had said 19;[13]
·he said that at no stage did he hear any mention of V’s Student ID card;
·he said that M had told him later that V had said that she was 19;[14]
·Mr Maunder explained the fact that V’s telephone number was on his mobile phone by saying that he gave M his mobile phone as M did not have one – he said that M rang V’s number with the telephone and so the number was recorded on Mr Maunder’s telephone.
[12] T 131
[13] T 129
[14] T 130
It was obvious that Mr Maunder was minimising his role in these events. In his interview to the police on 7 July 2008 he was not so guarded. When describing these events, he used the pronoun “we” on a number of occasions when referring to what he and M did on the jetty. For example:-
"QAnd what were the circumstances you met her.
AOh, me and a mate were fishing and she asked us to throw a fish at one of her friends.
QOkay. What, were you fishing off the jetty.
AYeah.
QAll right. And what happened then.
AWell we were just messing around, we just said “Oh, what, what do we get in return”, me and my mate, and she gave us her number.
QOkay. And how did she give you her number.
AShe gave it to us from a, from her mobile phone.
QAll right. And where did you record it.
AIn my mobile phone.[15]
[15] Record of Interview, p 4 lines 14 - 25
Mr Maunder said that V’s age was never mentioned during any of the nights out in his car. He said that he thought that she was 18 or 19. He gave a slightly different version of the occasions on which they went out from V’s account. He said that after the sexual intercourse occurred at The Bluff, they went to the beach on the same evening where sexual intercourse occurred again. V had said that it occurred the following night. Mr Maunder said that the night after they visited The Bluff, they went to the Victor Harbor Esplanade in his car and sexual intercourse occurred there as well.[16] He said that he and V got back to her father’s house at between 1.00 and 2.00 am.
[16] T 140
Mr Maunder said that it was on that night that V showed him her ID card. He said that she had told him that night that she was 13, but that he did not believe her. He said that after he saw the card, he believed her, and for that reason sexual intercourse did not occur that night.[17]
[17] T 166
Mr Maunder then told me that on a further occasion he went out with V and C in his car and the three of them walked to Granite Island. He said afterwards, C was in the front of the car and he was in the back with V. He said that C was not well. He said that he and V engaged in “sexual activity” in the back of the car but that sexual intercourse did not occur then.[18] This evidence seemed incongruous in light of his earlier evidence of the significance which he placed on receiving the information that V was only 13.
[18] T 147
Mr Maunder said that he and M had fallen out since these events, although his evidence about why that had occurred was confusing.[19] He said that he had not seen M for a year, and he did not know his present whereabouts. M was not called to give evidence.
[19] T 154, 33-37
I did not find Mr Maunder a particularly satisfactory witness. He was vague in areas where he appeared to consider the topic dangerous, particularly about the events which occurred on the Port Noarlunga Jetty. His evidence before me was of an entirely different flavour from the general tenor of his statements to the police in the Record of Interview which I have quoted. Mr Maunder was consciously minimising his role in the events of that evening in order to support his assertion that he was not listening to what was occurring and did not know V’s age at that point in time. I find this evidence unconvincing.
Conclusion
Mr Maunder bears the onus of proving on the balance of probabilities that he believed that V was 18 or 19 years old at the time this offence occurred. While I find that I cannot rely on V’s evidence, I find the evidence of T and to a lesser extent that of K about the conversations which occurred on the Port Noarlunga Jetty on the evening of the 31st December 2007 are convincing. On the other hand, I found Mr Maunder’s evidence about these events unconvincing, and I am confident that he was deliberately understating his role in those events. I do not accept Mr Maunder’s evidence that the first time V told him that she was 13 years old was after the third act of sexual intercourse and that no further acts of sexual intercourse took place after that.
In all the circumstances, I find that I am not satisfied on the balance of probabilities that Mr Maunder had the belief that V was 18 or 19 years of age at the time that these events occurred. I find it more likely on the evidence that Mr Maunder knew that V was 13 years old at the time of these events.
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