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Molester’s conviction appeal is dismissed

A man jailed for molesting a young girl will remain behind bars after the Supreme Court dismissed his appeal against conviction.

Caesar Graham was convicted in Magistrates' Court last June of three counts of sexually assaulting a child under the age of 14 and was subsequently sentenced to three years imprisonment on each count.

It was alleged during trial that Graham had rubbed the girl's legs and genital area while she was in bed, but the defendant denied ever inappropriately touching the victim. He suggested that the girl had fabricated the story, and that the victim tells lies to avoid trouble.

However Magistrate Khamisi Tokunbo said of the victim's testimony: “She impressed me as a young woman who has been harbouring her recollection of her younger years with pain and resentment toward the defendant.

“I found that she gave an honest and vivid account to the best of her recollection with genuine confidence of the truth and the belief of what happened between her and the defendant, her main weakness or uncertainly being her exact age at relevant times between six and 11.”

Mr Tokunbo said he was less impressed by the defendant, stating that there were material conflicts between his testimony and the case put forward by his counsel.

Graham subsequently launched an appeal against his conviction, arguing that Mr Tokunbo had erred by taking into account “highly prejudicial evidence”, and that he had been denied a fair trial because his former counsel — Marc Daniels and Simone Smith-Bean — had failed to adequately conduct his defence.

Lawyer Javone Rogers, now representing Graham, argued that testimony regarding an incident at Police Beach — which did not directly relate to the charges — should not have been admitted.

The victim had told the court that during the incident the defendant had removed her bathing suit bottoms while she was in the water, but Graham said the girl had removed her own bottoms.

Mr Rogers argued that the evidence relating to the incident was highly prejudicial and did nothing to assist the court in determining the charges that were before the court, but prosecutor Susan Mulligan said the evidence was clearly background to explain how the complaints came to be made.

She also said the details of the incident were largely elicited by the defence in cross examination of the victim and her brother as part of a strategy to portray the girl as someone motivated to make false allegations.

In his judgement, Chief Justice Ian Kawaley found that Mr Tokunbo did not err in law in how he handled the Police Beach evidence, saying it was admissible to explain how the complaints came to be reported to police.

As a result, he further rejected the suggestion that Mr Daniels, who acted as Graham's counsel during the trial, had erred by not objecting to the evidence.

And while Graham alleged that Mr Daniels did not adequately represent his case because he did not follow the defendant's instructions about how to carry out cross examination, the Chief Justice found that no substantial miscarriage of justice has been done.

He wrote that it was “inherently unbelievable” that Mr Daniels would put detailed matters to the victim without instruction from the defendant, adding: “The case that counsel put was, to my mind, more likely to secure an acquittal than the case the appellant now contends he wanted to be put.”

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Published October 09, 2014 at 9:00 am (Updated October 09, 2014 at 12:49 am)

Molester’s conviction appeal is dismissed

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