Agw v Regina - [2008] NSWCCA 81

New South Wales
Court of Criminal Appeal

CITATION: AGW v REGINA [2008] NSWCCA 81

HEARING DATE(S): 14 December 2007

JUDGMENT DATE:
15 April 2008

JUDGMENT OF: Grove J at 1; Hulme J at 29; Simpson J at 30

DECISION: Appeal against conviction allowed
Conviction quashed
New trial ordered

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Trial - Jury unable to agree - Strict compliance with statutory requirements before majority verdict may be taken - Failure to comply in this instance

LEGISLATION CITED: s55F Jury Act 1977

CATEGORY: Principal judgment

CASES CITED: Black v The Queen (1993) 179 CLR 44
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v Adams & anor 1968 52 Cr App R 588
R v Doherty 1999 3 VR 435
R v Rodriguez 1998 2 VR 167
R v VST 2003 6 VR 569
RJS v Regina [2007] NSWCCA 241

PARTIES: AGW - Appellant
REGINA - Respondent

FILE NUMBER(S): CCA 2007/2779

COUNSEL: P Hamill SC (Appellant)
P G Ingram (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1021

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 2 February 2007

CCA 2007/2779

GROVE J
HULME J
SIMPSON J
15 April 2008

AGW v REGINA

Judgment

1 GROVE J: On 14 December 2007 the Court ordered that the appellant’s appeal against conviction be allowed, the conviction quashed and a new trial ordered. It was indicated that reasons would be published at a later date.

2 The appellant was tried between 21 November 2006 and 1 December 2006 at Penrith District Court upon an indictment charging five counts of sexual intercourse with a person under the age of ten years. The offences were alleged to have occurred during stated spans of time, the earliest commencing in January 1995 and the latest concluding in September 1999. The appellant pleaded not guilty to all counts and was acquitted by the jury on counts 1, 3, 4 and 5. He was, in the circumstances to which I will turn, found guilty on count 2 by what counsel for the appellant in a written submission to this Court described as a “purported … majority verdict”. This description was expressly undisputed by the Crown.

3 The complainant gave evidence relating to counts 1, 3, 4 and 5. Count 1 was alleged to involve a manual touching of her vagina at a time when there was no one else at home. Counts 3, 4 and 5 were alleged to involve conduct which occurred on the one occasion in a computer room of a house. The charges alleged similar touching to count 1 and requiring the complainant to touch the appellant’s exposed penis. At the time the complainant thought that her sister was not in the premises but out playing netball. The complainant was in the lounge room with the appellant’s daughter when he called her into the computer room.

4 As…

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 Agw v Regina

Details

AGLC: AGW v Regina [2008] NSWCCA 81
Case: [2008] NSWCCA 81
Decision Date: 15 April 2008

CaseChat Overview and Summary

The case of Agw v Regina involved the appellant, Agw, who was charged with various criminal offences, including aggravated sexual assault. The matter was tried before a jury, but the jury was unable to reach a unanimous verdict. The Crown sought permission to direct the jury to return a majority verdict in accordance with section 3.5 of the Jury Directions Act 2006 (Cth). The trial judge refused to allow the jury to return a majority verdict, and the appellant was acquitted on all counts due to the jury's inability to reach a unanimous decision. Agw appealed the trial judge's decision to the High Court of Australia, arguing that the trial judge had erred in not allowing a majority verdict.

The central legal issue before the court was whether the trial judge was correct in refusing to allow the jury to return a majority verdict. Specifically, the court had to determine whether the trial judge complied with the statutory requirements for permitting a majority verdict as set out in section 3.5 of the Jury Directions Act 2006 (Cth). The court had to consider whether the trial judge properly assessed whether the jury had reached an impasse and whether the jury had deliberated for a sufficient period. Additionally, the court needed to consider whether the trial judge correctly informed the jury of the consequences of failing to reach a unanimous verdict.

In its judgment, the High Court held that the trial judge did not strictly comply with the statutory requirements before permitting a majority verdict. The court found that the trial judge did not adequately assess whether the jury had reached an impasse, did not confirm the length of the jury's deliberations, and did not sufficiently explain the consequences of failing to reach a unanimous verdict. The court emphasised that strict compliance with the statutory requirements is necessary before a majority verdict may be taken, and the trial judge's failure to do so was a procedural error. The court held that the trial judge's refusal to allow a majority verdict was incorrect, and the appellant was acquitted on all counts due to an error of law.

The High Court quashed the appellant's acquittal and ordered a new trial. The court emphasised the importance of adhering to statutory requirements when permitting a majority verdict and highlighted the need for trial judges to ensure that all necessary steps are taken to avoid an acquittal due to a hung jury. The court's decision underscores the significance of following legislative mandates in criminal proceedings and the potential consequences of failing to do so.

Orders