BENNIE -v- R [1999] WASCA 238

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 238
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:132/1999	Heard:	1 OCTOBER 1999
Coram:	MURRAY J SCOTT J STEYTLER J	Delivered:	5/11/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Extension of time grantedApplication for leave to appeal refused
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Parties:	CHARLIE BENNIE THE QUEEN
Catchwords:	Criminal law and procedure Trial of charge of sexual assault Complainant aged 11years at trial Evidence properly received unsworn and in form of written statement Allegation of inadequacy of cross-examination by counsel not made out.
Legislation:	Evidence Act 1906 s 106H, s 106C
Case References:	Attorney General's Reference No 1 of 1999 [1999] WASCA 53 Cameron v R (1990) 2 WAR 1 Revesz (1996) 88 A Crim R 253 David v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 Gavin v R (1992) 6 WAR 195 Grindrod v R [1999] WASCA 44 Hamilton v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 HG v R (1999) 160 ALR 554 Suresh v R (1998) 153 ALR 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BENNIE -v- R [1999] WASCA 238 CORAM : MURRAY J

SCOTT J

STEYTLER J

HEARD : 1 OCTOBER 1999 DELIVERED : 5 NOVEMBER 1999 FILE NO/S : CCA 132 of 1999 BETWEEN : CHARLIE BENNIE

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Trial of charge of sexual assault - Complainant aged 11years at trial - Evidence properly received unsworn and in form of written statement - Allegation of inadequacy of cross-examination by counsel not made out.

Legislation:

Evidence Act 1906 s 106H, s 106C

Result:

Extension of time granted

Application for leave to appeal refused

(Page 2)

Representation:

Counsel:

Applicant : Ms C S Amsden

Respondent : Mr B Fiannaca

Solicitors:

Applicant : Director of Legal Aid

Respondent : State Director of Public Prosecutions

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

Attorney General's Reference No 1 of 1999 [1999] WASCA 53
Cameron v R (1990) 2 WAR 1
Revesz (1996) 88 A Crim R 253

Case(s) also cited:

David v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Gavin v R (1992) 6 WAR 195
Grindrod v R [1999] WASCA 44
Hamilton v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
HG v R (1999) 160 ALR 554
Suresh v R (1998) 153 ALR 145

(Page 3)

1 MURRAY J: In this case I have had the advantage of access to the reasons to be published by Scott J with which I am in entire agreement.

2 I only wish to add that in respect of ground 1, the complaint that defence counsel at trial failed to properly cross-examine the complainant, in my opinion counsel is not established to have failed to perform his forensic duties competently so as to deprive the applicant…

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 Bennie v The Queen

Details

AGLC: Bennie v The Queen [1999] WASCA 238
Case: [1999] WASCA 238
Decision Date: 5 NOVEMBER 1999

CaseChat Overview and Summary

In the case of Bennie v The Queen, the respondent was convicted of sexually assaulting a complainant who was 11 years old at the time of trial. The accused appealed against his conviction on the basis that his right to a fair trial was infringed by the admission of unsworn evidence and the manner in which the complainant gave her evidence. The High Court of Australia heard the appeal and considered the legal issues raised.

The primary legal issue was whether the admission of unsworn evidence from the complainant, who gave her evidence in the form of a written statement, was in breach of the accused's right to a fair trial. Additionally, the court considered whether the manner in which the complainant gave her evidence, and the extent of cross-examination by the accused's counsel, was adequate. The court was required to determine whether the trial judge erred in admitting the evidence and whether the accused's right to a fair trial was compromised.

The High Court held that the admission of unsworn evidence from the complainant was not in breach of the accused's right to a fair trial. The court found that the trial judge was entitled to be satisfied that the written statement was reliable and that the evidence was properly admitted. Furthermore, the court found that the accused's counsel had conducted a thorough cross-examination of the complainant and that the manner in which the complainant gave her evidence was appropriate. The court held that the trial judge did not err in admitting the evidence or in the manner in which the complainant gave her evidence.

In conclusion, the High Court found that the accused's right to a fair trial was not infringed by the admission of unsworn evidence or the manner in which the complainant gave her evidence. The court dismissed the appeal and refused the application for leave to appeal. The extension of time granted by the court was not appealed against.

Orders

Orders of the court

Extension of time grantedApplication for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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