Bryan v The Queen - [2007] NSWCCA 351

New South Wales
Court of Criminal Appeal

CITATION: Bryan v R [2007] NSWCCA 351

HEARING DATE(S): 4 December 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: Grove J at 1; Hulme J at 35; Simpson J at 36

DECISION: Appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sexual offences on male aged under 16 - Trial - Anticipation that complainant will misstate time frame of alleged offences - Prosecution seeks to prove this independently of his evidence - Judge directs jury in terms that time is of the essence - Jury verdicts of guilty not unreasonable on the whole of the evidence

PARTIES: Gregory Mark BRYAN (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/5192

COUNSEL: P Byrne SC (Appellant)
N Adams (Respondent/Crown)

SOLICITORS: K Papanicolaou (Appellant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2034

LOWER COURT JUDICIAL OFFICER: O'Reilly ADCJ

LOWER COURT DATE OF DECISION: 3 November 2006

CCA 2007/5192

GROVE J
HULME J
SIMPSON J
14 December 2007

Gregory Mark BRYAN v R

Judgment

1 GROVE J: This is an appeal against conviction following a trial before O’Reilly ADCJ and a jury at Penrith District Court. The indictment charged two counts of sexual intercourse with a child aged between ten and sixteen years, two counts of homosexual intercourse with a male aged between ten and eighteen years and two counts of aggravated indecent assault. The appellant was found guilty on all counts and was sentenced to various terms of imprisonment. There is no application for leave to appeal against sentence.

2 The complainant, whom I will refer to from time to time as M, was a school pupil. The appellant was a youth pastor at the Blue Mountains City Church. They first encountered each other when M was delivering pamphlets in the area where the appellant and he then lived. M would visit on occasions and they would talk and sometimes the appellant provided him with something to drink. These encounters were entirely innocent. M and his family moved from the area and the contact diminished but subsequently the appellant also moved and came to occupy a house about five minutes walk from where M resided. Considerable contact between them was made by text messaging on mobile telephones. M was involved in an incident referred to at trial as the Thomas Park incident. He had apparently been sexually interfered with by a group of young males. What was involved in the incident was not disclosed to the jury but he gave evidence that he told the appellant about it in a text message. The appellant responded that he could “come over” and M went to his home, dressed in his pyjamas. Whilst M was at the house the offences charged in counts 1 and 5 took place.

3 A couple of weeks later they were again exchanging text messages and M went to the house again. What was charged in counts 2 and 3 occurred that night.

4 After a…

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 Bryan v The Queen

Details

AGLC: Bryan v The Queen [2007] NSWCCA 351
Case: [2007] NSWCCA 351
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of Bryan v The Queen involved the appellant, Bryan, who was convicted of multiple sexual offences against a male under 16. The appeal was against the conviction, focusing on the direction given by the trial judge to the jury concerning the timeframe of the alleged offences. The trial judge anticipated that the complainant might misstate the timeframe of the offences and directed the jury that the time of the offences was of the essence for the conviction. The appellant argued that this direction was misconceived and prejudicial. The High Court of Australia was tasked with determining whether the trial judge's direction was erroneous and whether it resulted in a miscarriage of justice.

The central legal issues in this case revolved around the correctness of the trial judge's direction to the jury regarding the importance of the timeframe in establishing the offences. The appellant contended that the judge's direction mischaracterised the nature of the case and placed undue emphasis on the precise timing of the offences. This direction, according to the appellant, could have misled the jury and resulted in a conviction that was not supported by the evidence. The court needed to assess whether the direction was legally sound and whether it had the potential to prejudice the jury against the appellant.

The High Court held that the trial judge's direction to the jury was not erroneous. The court found that the direction was appropriate given the anticipated unreliability of the complainant's evidence on the timeframe of the offences. The court emphasised that the judge's direction was aimed at ensuring that the jury could properly assess the credibility of the complainant's evidence and make an informed decision. The jury's verdicts of guilty were deemed not unreasonable when considering the whole of the evidence presented. The court concluded that the trial judge's direction did not result in a miscarriage of justice and that the appeal was without merit.

The final orders of the court affirmed the conviction of the appellant on all counts. The appeal was dismissed, and the convictions were upheld. The court's decision underscored the importance of the trial judge's role in guiding the jury on critical aspects of the case, particularly when the credibility of key evidence is in question. The judgment highlighted the necessity for clear and legally sound directions to ensure that the jury can make a fair and informed decision based on the evidence presented.

Orders