R v Mayger - [2013] SASCFC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAYGER
[2013] SASCFC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
2 July 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES
The appellant was convicted after a trial by judge alone of aggravated indecent assault. The appellant contends the trial Judge gave inadequate reasons as to inconsistencies between the evidence of the complainant in court and what she had said to others. The appellant contends that the verdict was unreasonable and cannot be supported having regard to the evidence.
Held (dismissing the appeal):
1. A judge must clearly set out the basis upon which a decision rests. It is not necessary to give extensive and elaborate reasons. Although the Judge did not give a detailed summary of the inconsistencies in the evidence, he had regard to them. His reasons were adequate (at [25]).
2. The inconsistencies in the evidence are not sufficient to conclude that the verdict was not reasonably open on the evidence (at [28]-[29]).
3. A party can tender a statement under s 34CA of the Evidence Act 1929 (SA) and call oral evidence from the maker of the statement upon the same subject. In such instances it would be difficult as a matter of discretion to limit cross-examination (at [35]).
4. Where a witness simply repeats matters contained in a s 34CA statement (as opposed to filling in gaps in the statement or resolving ambiguities), there appears to be no reason why the statement ought to be admitted in exercise of the judge's discretion pursuant to s 34CA(1) (at[36]).
5. The prosecution tendered the complainant's s 34CA statement and then elicted further evidence on topics addressed therein. The prosecution was entitled to do so. The Court continued to be able to exercise its inherent power to control the questioning of the complainant in court and to disallow inappropriate repetition. No objection was taken to the repetition. No risk of a miscarriage of justice arose (at [40]-[44]).
Evidence Act 1929 (SA) s 34CA, s 9, s 25, referred to.
R v Keyte (2000) 78 SASR 68; Petit v Dunkley (1971) 1 NSWLR 378; Soulemezik v Dudley (Holdings) Pty Ltd (1987) 2 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Sweeny [2008] SASC 300; Douglass v The Queen (2012) 86 ALJR 108; R v JJA (2009) 105 SASR 563; Gately v The Queen (2007) 232 CLR 208; Mooney v James [1949] VLR 22, considered.

R v MAYGER
[2013] SASCFC 65
Court of…

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 Mayger

Details

AGLC: R v Mayger [2013] SASCFC 65
Case: [2013] SASCFC 65
Decision Date: 2 July 2013

CaseChat Overview and Summary

The appeal concerned the adequacy of a trial judge's reasons for a decision and whether a verdict was reasonably open on the evidence. The parties involved were the Crown and the appellant, R v Mayger. The appeal was heard by Gray, Sulan, and Blue JJ.

The legal issues before the court were whether the trial judge's reasons for their decision were sufficient, and whether the jury's verdict was unreasonable or unsupported by the evidence. Additionally, the court considered the admissibility and use of statements tendered under section 34CA of the Evidence Act 1929 (SA), particularly in relation to the calling of oral evidence from the maker of such a statement and the potential for cross-examination.

The court held that while a judge must clearly articulate the basis of their decision, extensive and elaborate reasons are not always necessary. In this instance, the judge's reasons were deemed adequate, even though a detailed summary of evidentiary inconsistencies was not provided, as the judge had demonstrably considered them. The court found that the inconsistencies in the evidence did not, in themselves, render the verdict unreasonable. Regarding section 34CA statements, the court noted that if a witness merely repeats information already contained in the statement, there is generally no reason to admit the statement in the exercise of discretion. However, the prosecution was entitled to tender a section 34CA statement and elicit further evidence on related topics, provided the court retained control over questioning to prevent inappropriate repetition. No objection was taken to the repetition in this case, and no risk of a miscarriage of justice was identified, especially given the defendant's apparent agreement with the course taken.

The appeal was dismissed.

Orders

Orders of the court

Held (dismissing the appeal):

1. A judge must clearly set out the basis upon which a decision rests. It is not necessary to give extensive and elaborate reasons. Although the Judge did not give a detailed summary of the inconsistencies in the evidence, he had regard to them. His reasons were adequate (at [25]).

2. The inconsistencies in the evidence are not sufficient to conclude that the verdict was not reasonably open on the evidence (at [28]-[29]).

3. A party can tender a statement under s 34CA of the Evidence Act 1929 (SA) and call oral evidence from the maker of the statement upon the same subject. In such instances it would be difficult as a matter of discretion to limit cross-examination (at [35]).

4. Where a witness simply repeats matters contained in a s 34CA statement (as opposed to filling in gaps in the statement or resolving ambiguities), there appears to be no reason why the statement ought to be admitted in exercise of the judge's discretion pursuant to s 34CA(1) (at[36]).

5. The prosecution tendered the complainant's s 34CA statement and then elicted further evidence on topics addressed therein. The prosecution was entitled to do so. The Court continued to be able to exercise its inherent power to control the questioning of the complainant in court and to disallow inappropriate repetition. No objection was taken to the repetition. No risk of a miscarriage of justice arose (at [40]-[44]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We do not consider that any risk of a miscarriage of justice arose from any of these events, particularly having regard to the defendant’s apparent concurrence in the course that was followed.Conclusion We would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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