CPG v The Queen - [2009] NSWCCA 120

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
CPG v R [2009] NSWCCA 120

FILE NUMBER(S):
2007/5929

HEARING DATE(S):
25 March 2009

JUDGMENT DATE:
29 April 2009

PARTIES:
CPG (Applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Buddin J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/51/0123

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
13 December 2007

COUNSEL:
P Lange (Applicant)
M Grogan (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - persistent sexual abuse of a child - whether error in trial judge's direction that the relevant acts must have been committed on "three separate occasions" without reference to need for acts to have occurred on "separate days" - whether error in trial judge's direction that evidence in relation to each occasion be considered separately - r 4 Criminal Appeal Rules applied - leave to appeal refused

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169
KBT v R HCA 199754 (1997) 191 CLR 417
R v Maunsa [2001] NSWCCA 427; 125 A Crim R 505

TEXTS CITED:

DECISION:
Refuse leave to appeal under Rule 4 and dismiss the appeal

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5929
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
WEDNESDAY, 29 APRIL 2009

CPG v R

Judgment

McCLELLAN CJ at CL: The applicant was tried in the District Court on 10 counts. The first count pleaded that the applicant was guilty of persistent sexual abuse of his daughter contrary to s 66EA(1) Crimes Act 1900. With respect to this count the Crown alleged that there were six occasions when a sexual offence occurred. The first five occasions were alleged to involve a single incident. The sixth occasion was pleaded as being comprised of five incidents. In the alternative a number of the occasions, said to constitute the first count, were pleaded as separate offences and an additional allegation was pleaded as an alternative to count 6.
The complainant is the applicant’s daughter. Because of injuries suffered by her mother in a motorcar accident when her parents separated the complainant went to live with the applicant and his new partner. The individual incidents were alleged to have occurred at various locations and involved different sexual acts.
The alleged offences and maximum penalties for those offences may be summarised as follows:
Count 1
Occasion 1:          X-Box occasion
Sexual intercourse with a person over 10 and under 14. Between 1 March and 30 November 2005 at Moonee Beach. (Section 66C(2) Crimes Act 1900; 20 years imprisonment).
This occasion is count 2 in the alternative to Count 1
Occasion 2:          Motel in Melbourne occasion
Sexual intercourse with a person over 10 and under 14. Between 1 August and 31 October 2005 in Victoria. (Section 66C(2) Crimes Act 1900; 20 years imprisonment).
Occasion 3:          Vibrator and Pornography occasion
Aggravated act…

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 CPG v The Queen

Details

AGLC: CPG v The Queen [2009] NSWCCA 120
Case: [2009] NSWCCA 120
Decision Date: 29 April 2009

CaseChat Overview and Summary

In the case of CPG v The Queen, the appellant, CPG, sought to appeal his conviction for persistent sexual abuse of a child. The matter was heard and determined by the court, which was required to consider whether there was any error in the trial judge's direction to the jury that the relevant acts must have been committed on "three separate occasions" without reference to the need for the acts to have occurred on "separate days." Additionally, the court examined whether the trial judge erred in directing the jury that evidence in relation to each occasion be considered separately. The appellant argued that these directions potentially led to an improper assessment of the evidence, which may have influenced the jury's verdict.

The court was tasked with interpreting the relevant legal standards for the jury's consideration of evidence in relation to multiple acts of sexual abuse, specifically whether the trial judge's directions adequately aligned with the legal principles governing such cases. The court considered whether the omission of the requirement for the acts to have occurred on separate days, and the separate consideration of evidence for each occasion, could have affected the jury's assessment and, consequently, the fairness of the trial. The court's analysis involved a detailed examination of the trial judge's directions in the context of the applicable legal framework.

Upon review, the court found that the trial judge's directions did not constitute a significant error that would warrant a departure from the general rule against allowing appeals against conviction. The court determined that the omission of the requirement for the acts to have occurred on separate days did not undermine the essential fairness of the trial, as the acts were still required to have been committed on separate occasions. Furthermore, the court held that the separate consideration of evidence for each occasion did not result in an improper assessment by the jury. Consequently, the court concluded that there was no sufficient ground for allowing the appeal and dismissed the application.

The court's decision resulted in the refusal of leave to appeal, upholding the original conviction of the appellant. The reasoning provided by the court emphasised the importance of maintaining the integrity of the trial process while also acknowledging the nuances involved in the interpretation of legal directions given to a jury.

Orders