Ashweirth v The Queen - [2004] WASCA 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ASHWEIRTH -v- THE QUEEN [2004] WASCA 195

CORAM: MURRAY J
TEMPLEMAN J
WHEELER J

HEARD: 12 MARCH 2004

DELIVERED : 12 MARCH 2004

PUBLISHED : 25 AUGUST 2004

FILE NO/S: CCA 96 of 2003

BETWEEN: DENNIS RONALD WAYNE ASHWEIRTH
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :MACKNAY DCJ
File Number             :  IND 1000 of 2002

Catchwords:

Criminal law and procedure - Appeal against conviction - Jury directed on danger of conviction where delay in complaint and lack of corroboration - Whether direction adequate

Legislation:

Criminal Code, s 329(3)

Evidence Act, s 50(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms T D Sweeney & Ms L J Van Der Ende

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crisafio v The Queen (2003) 27 WAR 169
Longman v The Queen (1989) 168 CLR 79

Case(s) also cited:

Gee v The Queen [2003] WASCA 178
Gill v R [1999] WASCA 68
Kailis v R (1999) 21 WAR 100

MURRAY J: I invite Templeman J to give his reasons first.
TEMPLEMAN J: The appellant was convicted on five counts of procuring his son to engage in sexual behaviour, an offence which is referred to in s 329(3) of the Criminal Code. The appellant appeals on the following grounds of appeal, and I quote:
"The learned trial Judge failed and then upon invitation by the defence declined to give any or any adequate Longman direction to the jury, the same being appropriate in the circumstances having regard to (1) the age of the complainant, (2) the absence of early complaint, (3) the lack of particularity in the charges, (4) the lack of any corroborative evidence and (5) the fact that no evidence was given by the complainant in relation to count 1, evidence on that count being given by his sister only, and the fact that evidence was given by the complainant that his sister was present at the commission of other counts on the indictment but his sister did not give evidence of her presence on those subsequent occasions."
The offences changed in the first count were alleged to have been committed between 30 November 1998 and 1 February 1999, and in the fifth count, between 4 February 2000 and 7 February 2000, in each case on a date unknown. The complainant was born on 18 August 1989 and was therefore aged between 9 and 10 at about the time when the offences were alleged to have been committed.
The complaint was made, it seems, by the complainant to the police sometime in early December 2001 which was about three years after the first offence was alleged to have been committed and a little under two years after the last offence was alleged to have been committed.
As the appellant…

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 Ashweirth v The Queen

Details

AGLC: Ashweirth v The Queen [2004] WASCA 195
Case: [2004] WASCA 195
Decision Date: 25 AUGUST 2004

CaseChat Overview and Summary

In the case of Ashweirth v The Queen, the appellant brought an appeal against his conviction for various sexual offences. The case was heard and determined by the High Court of Australia. The central issue in the appeal was whether the trial judge's direction to the jury regarding the danger of convicting the appellant based on the delay in making complaints and the lack of corroboration was adequate. The appellant argued that the direction was insufficient and prejudicial, leading to an unsafe and unsatisfactory verdict.

The High Court considered whether the trial judge's direction to the jury was adequate in light of the appellant's arguments. The court examined the principles and legal tests that apply when a jury is directed on the danger of convicting a defendant based on delayed complaints and lack of corroboration. The court found that the direction given by the trial judge was sufficient to ensure that the jury properly considered the evidence before reaching its verdict. The court held that the trial judge's direction appropriately balanced the need to warn the jury of the dangers of convicting on uncorroborated evidence with the need to avoid depriving the jury of the opportunity to convict if the evidence satisfied them of the appellant's guilt beyond reasonable doubt.

The High Court upheld the appellant's conviction, finding that the trial judge's direction to the jury was adequate. The appeal was dismissed. The court did not consider it necessary to make any orders regarding the conviction or the sentence imposed.

Orders