BG v R

Case [2012] NSWCCA 139 10 July 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BG v R [2012] NSWCCA 139
Hearing dates: 6 June 2012
Decision date: 10 July 2012
Before: McClellan CJ at CL at [1]
McDougall J at [2]
Adamson J at [3]
Decision:
1. Grant leave to appeal.
2. Order that the appeal be dismissed.

Catchwords:
CRIMINAL LAW - appeal against conviction - sexual assault offences - assessment of the evidence as a whole - whether jury's verdict was unreasonable
CRIMINAL LAW - juries - decision to discharge a juror - two step approach when discharging a juror - deliberations of jurors -whether the discretion to continue with a jury of eleven miscarried - the importance of giving reasons when making the decisions to discharge a juror and continue with fewer than twelve jurors
Legislation Cited: - Crimes Act 1900
- Jury Act 1977
- Jury Act 1995 (Qld)
- Criminal Justice Act 1965 (UK)
Cases Cited: - Jones v The Queen [1997] HCA 12; 191 CLR 439
- M v The Queen [1994] HCA 63; 181 CLR 487
- R v Derbas (1993) 66 A Crim R 327
- Wu v The Queen [1999] HCA 52; 199 CLR 99
- R v Metius [2009] QCA 3; (2009) 2 Qd R 442
- R v Roberts [2004] QCA 366; (2005) 1 Qd R 408
- The Queen v Arnott [2009] VSCA 299; 26 VR 490
- R v Fontaine 2002 MBCA 107
- R v Goodson [1975] 1 WLR 549
- R v Hahn 1995 CarswellBC 1238
- R v Latimer [1990] OJ No. 401
- R v Peters 1999 BCCA 406
- White v Knowles 2011 WL 1196053 (ND Cal)
Category: Principal judgment
Parties: BG (Applicant)
Regina (Respondent)
Representation: Counsel:
C Loukas (Applicant)
S Dowling (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/238556
Decision under appeal

Date of Decision:

2011-11-09 00:00:00

Before:

Payne DCJ

File Number(s):

2009/238556

Judgment

McCLELLAN CJ at CL: I agree with Adamson J.

McDOUGALL J: I agree with Adamson J.

ADAMSON J: The applicant (BG) was convicted of three counts of sexual offences against his daughter (K), contrary to the Crimes Act 1900: two counts of aggravated indecent assault against a child under the age of 10 years, (s 61M(2)) and one count of sexual intercourse with a child under the age of 10 years (s 66A) following a trial before the District Court (Payne DCJ and a jury of 11). BG was sentenced to an aggregate non-parole period of six years, with an additional term of three years.

BG seeks leave to appeal against his conviction on two grounds: first, that the verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence; and secondly, that there was a miscarriage of justice because the trial judge erroneously discharged a juror and allowed the trial to continue with…

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 BG v R

Details

AGLC: BG v R [2012] NSWCCA 139
Case: [2012] NSWCCA 139
Decision Date: 10 July 2012

CaseChat Overview and Summary

The appellant, BG, was convicted in the County Court of Victoria of three counts of sexual assault against a minor. The conviction was appealed on the grounds that the jury's verdict was unreasonable and that the trial judge misapplied the law in relation to the discharge of a juror. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The primary legal issues before the court were whether the jury's verdict was unreasonable and whether the trial judge erred in law when deciding to discharge a juror and to continue with a jury of eleven.

The court found that the jury's verdict was open to the jury, and that there was no error in the trial judge's decision to discharge a juror. The court held that the trial judge's decision to discharge the juror was not unreasonable, and that the judge properly considered the relevant factors when making the decision. The court also held that the trial judge did not err in law when deciding to continue with a jury of eleven. The court found that the trial judge had considered the relevant factors, including the nature of the offence, the complexity of the evidence, and the importance of a unanimous verdict, and had properly exercised his discretion. The court further held that the trial judge was not required to give reasons for his decision to discharge a juror and to continue with a jury of eleven, but that it was desirable for the judge to do so in the interests of transparency and accountability.

The appeal was dismissed. The conviction and sentence of the appellant were upheld. The court found that the trial judge had properly exercised his discretion in relation to the discharge of a juror and the continuation of the trial with a jury of eleven, and that the jury's verdict was open to them and not unreasonable. The court held that there was no error in law that would warrant the setting aside of the conviction.

Orders