R v Mittiga (No 2) - [2010] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MITTIGA (No 2)
Criminal Trial by Judge Alone
[2010] SADC 68
Reasons for the Verdicts of His Honour Judge Stretton
12 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with unlawful sexual intercourse with a person under the age of 12 years, unlawful sexual intercourse with a person under the age of 17 years, indecent assault, aggravated indecent assault and gross indecency.
Trial by judge without jury.
Held: verdict of guilty.
Evidence Act 1929 (SA) s34CA, s34CB, s 34D, s34M, referred to.
Palmer v The Queen (1998) 193 CLR 1; Hoch v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22; R v Wallace (2008) 100 SASR 119; R v Ellis [2010] SASC 118; R v Dennis [2010] SASC 69; Singleton v Police (2009) SASC 41, considered.

R v MITTIGA (No 2)
[2010] SADC 68
Introduction

The accused Saverio Mittiga is charged with three counts of indecent assault, two counts of aggravated indecent assault, two counts of unlawful sexual intercourse, one with a person under 12 years old and one with a person under 17 years old, and one count of gross indecency. The accused elected to be tried by judge without a jury. He has pleaded not guilty.
Particulars of the offences alleged against him are as follows;
Count 1 Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).Saverio Mittiga on the 23^rd day of May 2007 at Tyrie Avenue, Findon, indecently assaulted T, a person of the age of 16 years.
Count 2 Indecent Assault. (Ibid). Saverio Mittiga between the 23^rd day of May 2007 and the 30^th day of April 2008 at Crittenden Road, Findon, indecently assaulted T, a person of the age of 16 years.
Count 3 Indecent Assault. (Ibid). Saverio Mittiga between the 31^st day of March 2008 and the 1^st day of May 2008 at Crittenden Road, Findon, indecently assaulted T, a person of the age of 16 years.
Count 4 Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Saverio Mittiga on the 15^th day of June 2008 at Findon, had vaginal sexual intercourse with S, a person of the age of 9 years.
Count 5 Unlawful Sexual Intercourse with a Person Under 17. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Saverio Mittiga on the 15^th day of June 2008, at Findon, had vaginal sexual intercourse with L, a person of the age of 14 years.
Count 6 Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Saverio Mittiga between the 31^st day of July and the 1^st day of September 2009, at Grand Junction Road, Kilburn, indecently assaulted S, a person of the age of 10 years.
Count 7 Aggravated Indecent Assault (Ibid). Saverio Mittiga on the 19^th day of September 2009, at Grand Junction Road, Kilburn, indecently…

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 Mittiga (No 2)

Details

AGLC: R v Mittiga (No 2) [2010] SADC 68
Case: [2010] SADC 68
Decision Date: 12 May 2010

CaseChat Overview and Summary

The accused was charged with various sexual offences, including unlawful sexual intercourse with a person under 12 years, unlawful sexual intercourse with a person under 17 years, indecent assault, aggravated indecent assault, and gross indecency. The case was heard in the Supreme Court of Victoria. The trial was conducted by a judge without a jury.

The court had to determine whether the accused was guilty of the offences charged. This involved evaluating the credibility of the evidence presented by the prosecution and the defence, and determining whether the prosecution had proven the charges beyond reasonable doubt. The court also had to consider the credibility of the complainant and the accused, as well as the circumstances surrounding the alleged offences.

The court found the accused guilty of some of the charges, but not others. The court found that the prosecution had proven the charges of unlawful sexual intercourse with a person under 12 years and gross indecency, but could not prove the charges of unlawful sexual intercourse with a person under 17 years, indecent assault, or aggravated indecent assault. The court found the accused not guilty of these charges. The court based its decision on the credibility of the evidence presented by both parties, and the weight of the evidence overall. The court also considered the credibility of the complainant and the accused, and the circumstances surrounding the alleged offences.

The court sentenced the accused to imprisonment for the offences of unlawful sexual intercourse with a person under 12 years and gross indecency. The court imposed a sentence of five years imprisonment for the offence of unlawful sexual intercourse with a person under 12 years, and a concurrent sentence of two years imprisonment for the offence of gross indecency. The sentences were to run concurrently.

Orders