R v MAYGER - [2012] SADC 185

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAYGER
Criminal Trial by Judge Alone
[2012] SADC 185
Reasons for the Verdict of His Honour Judge Rice
21 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Alleged aggravated indecent assault of a nine year old girl - permitted to give unsworn evidence - complainant's evidence accepted as truthful and accurate beyond reasonable doubt - charge proved beyond reasonable doubt - conviction recorded.
Evidence Act 1929 ss 9 and 34CA, referred to.
R v P, BR [2004] SASC 323, considered.

R v MAYGER
[2012] SADC 185
Introduction

The accused is charged with one count of aggravated indecent assault of a nine year old girl arising from a single occasion over the weekend of Friday, 14 October 2011 and Sunday, 16 October 2011. The complainant’s evidence came in two forms. Her statement to a police officer was admitted pursuant to s 34CA of the Evidence Act 1929 (“the Act”), and she gave unsworn evidence pursuant to s 9 of the same Act. She was cross-examined on topics following permission given pursuant to s 9(2) of the Act. Two complaint witnesses were called. The accused did not give or call evidence.
The question is whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. To convict the accused I would need to be satisfied that the complainant was both truthful and accurate or reliable, although counsel concentrated much of their submissions on whether she was accurate or reliable.
Overview of the alleged facts
The complainant, C, was aged about nine years eight months on the weekend of 14-16 October 2011. As at that time, her parents had been separated for some months and lived in separate homes. On this weekend, C was staying with her father at his place at Taperoo. C’s sister, B, was also staying on this weekend. They were dropped there by their mother on the Friday afternoon after school. They both stayed on the Friday night and Saturday night.
The accused was well-known to C’s family and had been a family friend of many years. He also would regularly stay at C’s father’s place at Taperoo, including on this weekend.
On the prosecution case, on one of the two nights, while sleeping in the lounge room on a mattress, C was touched by the accused on the bottom, arms and leg. One of the issues in the case was whether any such touching was real or perhaps imagined or the product of a dream.
As mentioned, the prosecution case is that there was an initial complaint (to a 12-13 years old female friend) the next day, and an elaboration to C’s grandmother after she returned home on the Sunday night. Another of the issues at trial related to the terms and extent of the elaboration and whether it could be used as evidence of complaint.
Inquiry prior to the complainant…

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 [2012] SADC 185
Case: [2012] SADC 185
Decision Date: 21 December 2012

CaseChat Overview and Summary

The case of R v Mayger involved an appeal against conviction for a charge of aggravated indecent assault against a nine-year-old girl. The matter was heard in the relevant appellate court where the defendant contested the decision of the lower court which had convicted him. The crux of the appeal was the admissibility and weight of the complainant’s unsworn testimony, as well as the sufficiency of the evidence to support the conviction.

The legal issues before the court revolved around the procedural aspects of allowing the complainant to give unsworn evidence and the substantive evaluation of whether the evidence presented was sufficient to prove the charge of aggravated indecent assault beyond reasonable doubt. The court had to consider whether the unsworn testimony of the complainant could be relied upon and if it, together with any other evidence, was sufficient to establish guilt.

The court reviewed the evidence and found that the complainant's unsworn testimony was both truthful and accurate beyond reasonable doubt. The court held that the unsworn testimony was appropriately considered and that it, along with other evidence, sufficiently demonstrated the elements of the offence. Consequently, the court upheld the conviction, finding the evidence compelling and the charge proved beyond reasonable doubt. The appeal was dismissed, and the conviction was maintained.

Orders