R v McIver - [2021] NSWDC 595

District Court

New South Wales

Medium Neutral Citation: R v McIver [2021] NSWDC 595
Hearing dates: 20 – 22, 27 – 30 September 2021 & 05 October 2021
Date of orders: 13 October 2021
Decision date: 13 October 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
On each count on the indictment the accused is found not guilty

Catchwords:
CRIME — Sexual offences — Indecent assault
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:
Child Welfare Act 1939 (NSW)
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Fleming v R (1998) 197 CLR 250
McIver vR [2020] NSWCCA 343
R v McIver [2019] NSWDC 672

Category: Principal judgment
Parties: Regina (Crown)
John Dalziel McIver (accused)
Representation:
Anthony McCarthy (Crown Prosecutor)
Linda McSpedden (Counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
O’Brien Solicitors (solicitors for the accused)

File Number(s): 2016/00326970 & 2017/00172183
Publication restriction: No publication of the names of the complainants or of any information which may enable their identities to be ascertained

REVISED JudgEment

This is the trial of John Dalziel McIver and today it is in for judgement and my verdict, this being a judge alone trial.

INTRODUCTION

On Monday, 20 September 2021, John Dalziel McIver, represented by Ms McSpedden of counsel appeared for trial in the District Court, Sydney upon an indictment alleging offences of sexual assault upon three complainants. This is a re-trial after the accused successfully challenged earlier convictions in the Court of Criminal Appeal: R v McIver [2019] NSWDC 672; McIver vR [2020] NSWCCA 343. There were other proceedings before Whitford SC DCJ, from which judgements are not presently available.
In light of the complex history of the proceedings to this point, I have chosen not to review the aforementioned decisions to ensure that I approach what is required of me with regard to the evidence presented in this trial upon the current indictment and according to the manner in which the matter has been presented.

THE TRIAL

Upon arraignment before me the accused pleaded not guilty to each count. The offences upon which he was presented are:

Count 1: Between 17 July 1968 and 15 January 1971 at Bexley in the State of New South Wales did indecently assault AM, a male.

S 81 Crimes Act 1900

Count 2: Between 6 July 1973 and 5 December 1973 at Bexley in the State of New South Wales did indecently assault DC, a male.

S 81 Crimes Act 1900

Count 3: Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did commit an act of buggery with CN.

S 79 Crimes Act 1900

Count 4, in the alternative to count 3. Between 17 July 1968 and 15 January 1971 or between 19 January 1972 and 18 January 1974 at Bexley in the State of New South Wales did indecently assault CN, a…

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 McIver

Details

AGLC: R v McIver [2021] NSWDC 595
Case: [2021] NSWDC 595
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of R v McIver was heard before the Supreme Court of Victoria. The accused, McIver, faced charges related to indecent assault. The dispute revolved around the credibility of the complainant's testimony and the evidence presented during the trial. The trial was conducted before a judge alone, without a jury, and the judge was tasked with determining the guilt or innocence of the accused based on the evidence presented.

The primary legal issue before the court was whether the evidence, particularly the testimony of the complainant, was sufficient to establish the accused's guilt beyond reasonable doubt. The court had to consider the credibility of the complainant, the consistency of her statements, and the overall weight of the evidence presented. The court also had to assess whether any reasonable doubt existed regarding the accused's involvement in the alleged offences.

In reaching its decision, the court carefully evaluated the evidence and the credibility of the complainant. The judge concluded that there were significant inconsistencies and discrepancies in the complainant's testimony, as well as other factors that cast doubt on her reliability. Consequently, the court found that the prosecution had not proven the accused's guilt beyond reasonable doubt. As a result, the judge delivered reasons explaining the basis for the acquittal, highlighting the key factors that led to the conclusion of innocence.

Ultimately, on each count on the indictment, the accused was found not guilty. The court's decision was based on a thorough analysis of the evidence and the application of the legal standards required to secure a conviction in a criminal trial.

Orders

Orders of the court

On each count on the indictment the accused is found not guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v McIver [2021] NSWDC 595
Hearing dates:	20 – 22, 27 – 30 September 2021 & 05 October 2021
Date of orders:	13 October 2021
Decision date:	13 October 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	On each count on the indictment the accused is found not guilty
Catchwords:	CRIME — Sexual offences — Indecent assault CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
Legislation Cited:	Child Welfare Act 1939 (NSW) Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Fleming v R (1998) 197 CLR 250 McIver vR [2020] NSWCCA 343 R v McIver [2019] NSWDC 672
Category:	Principal judgment
Parties:	Regina (Crown) John Dalziel McIver (accused)
Representation:	Anthony McCarthy (Crown Prosecutor) Linda McSpedden (Counsel for the accused) Director of Public Prosecutions (NSW) (Crown) O’Brien Solicitors (solicitors for the accused)
File Number(s):	2016/00326970 & 2017/00172183
Publication restriction:	No publication of the names of the complainants or of any information which may enable their identities to be ascertained