CJG v Regina - [2007] NSWCCA 190

New South Wales
Court of Criminal Appeal

CITATION: CJG v Regina [2007] NSWCCA 190

HEARING DATE(S): 14 June 2007

JUDGMENT DATE:
4 July 2007

JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 34

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - COUNTS CHARGING SEXUAL INTERCOURSE WITHOUT CONSENT AND INDECENT ASSAULT - CONVICTION ON COUNTS CHARGING INDECENT ASSAULT - APPEAL AGAINST CONVICTION - PARTICULAR ADVANTAGES OF JURY INCLUDING VIDEO OF 9 YEAR OLD COMPLAINANT DESCRIBING EVENTS GIVING RISE TO CHARGES - VIDEO NO LONGER AVAILABLE - SINGLE GROUND OF APPEAL ALLEGING VERDICTS OF GUILTY UNREASONABLE - NO INCONSISTENCY IN JURY VERDICTS DEMONSTRATED - SUBMISSION THAT CREDIBILITY OF COMPLAINANT CHILD FATALLY FLAWED REJECTED

LEGISLATION CITED: Crimes Act 1900

CASES CITED: M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 196 CLR 348
R v Markuleski (2001) 52 NSWLR 82
Regina v NZ (2005) 63 NSWLR 628

PARTIES: CJG v Regina

FILE NUMBER(S): CCA 2007/694

COUNSEL: B. Rigg (Appellant)
J. Dwyer (Respondent/Crown)

SOLICITORS: Meehan Legal (Appellant)
S. Kavanagh (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3316

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 22/12/04

2007/694

HODGSON JA
GROVE J
SIMPSON J
Wednesday 4 July 2007

CJG v REGINA

Judgment

1 HODGSON JA: I agree with Grove J.

2 GROVE J: This is an appeal concerning three counts of an indictment upon which the appellant was convicted following trial before Maguire DCJ and a jury at Campbelltown District Court in August 2004. Sentences imposed by his Honour have expired and the appeal challenges conviction only.

3 The indictment contained eleven counts, two of which pleaded alternatives (counts 6 and 11). Counts 1, 2, 3, 6, 7, 9 and 11 charged sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. The alternative to count 6 charged aggravated indecent assault contrary to s 61M(2) of that Act and the alternative to count 11 charged attempted sexual intercourse with a child under ten years contrary to s 66B. Counts 4, 5, 8, and 10 charged aggravated indecent assault making allegations similar to that comprehended in the alternative charged under count 6.

4 The appellant was found guilty on count 5, on the alternative to count 6 and on count 10, that is on three counts, each charging aggravated indecent assault. He was found not guilty on all other counts.

5 All offences were alleged to have taken place between 11 April and 17 June 2003 in residential premises. These belonged to the complainant’s grandfather and, inter alia, consisted of six bedrooms which were located on upper and lower floors. One bedroom on the upper floor to which was attached an en suite bathroom was occupied by the grandfather and, from time to time, a lady friend of his. Another bedroom on that level was occupied by the complainant’s mother and father and a third bedroom by…

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 CJG v Regina

Details

AGLC: CJG v Regina [2007] NSWCCA 190
Case: [2007] NSWCCA 190
Decision Date: 4 July 2007

CaseChat Overview and Summary

The appeal against conviction was brought by CJG against Regina, in which CJG contested the decision of the lower court to convict him on counts of indecent assault. The case was heard in the relevant appellate court, where the primary issue was whether the jury's verdict of guilty was unreasonable given the circumstances surrounding the case. The appellant argued that the jury had the advantage of viewing a video of the nine-year-old complainant describing the events that led to the charges. However, this video was no longer available, leading to the sole ground of appeal that the verdicts were unreasonable. The court was tasked with determining if the jury's verdicts were indeed unreasonable, considering the absence of the video evidence and whether there was any inconsistency demonstrated in the verdicts.

The court carefully considered the arguments presented, particularly focusing on the significance of the video evidence and its impact on the jury's decision-making process. The court examined the evidence presented at trial and the jury's reasoning in reaching their verdicts. It was noted that there was no demonstrated inconsistency in the jury's verdicts, and the absence of the video did not undermine the jury's ability to make an informed decision. The court held that the jury's verdicts were not unreasonable, as they were based on the other available evidence and the overall circumstances of the case. The credibility of the complainant and the other evidence presented was sufficient to support the jury's decision.

The court dismissed the appeal, affirming the conviction on the counts of indecent assault. The reasoning provided by the jury was deemed reasonable and consistent with the evidence presented. The absence of the video did not constitute a significant factor that would have altered the jury's verdict. Consequently, the court upheld the conviction, and no further orders were made beyond the dismissal of the appeal.

Orders