DD v The Queen - [2010] NSWCCA 237

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DD v R [2010] NSWCCA 237

FILE NUMBER(S):
2009/4121009

HEARING DATE(S):
14/10/2010

JUDGMENT DATE:
26 October 2010

PARTIES:
DD - Appellant
Regina - Respondent

JUDGMENT OF:
McClellan CJatCL Kirby J Hoeben J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/11/1063

LOWER COURT JUDICIAL OFFICER:
Knox DCJ

LOWER COURT DATE OF DECISION:
11/12/2009

COUNSEL:
Mr R Foord/Mr D Mihalic - Appellant
Mr J Pickering - Crown

SOLICITORS:
Haylen Mackenzie - Appellant
S Kavanagh - Crown

CATCHWORDS:
APPEAL – Appeal against conviction – conviction on some counts of sexual assault and acquittal on others – whether verdicts of jury were inconsistent and unreasonable – verdicts capable of being reconciled – Challenge to Trial Judge’s refusal to give direction – whether evidence available to support Crown submission in final address.

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
MacKenzie v The Queen (1996) 190 CLR 348 at 366
R v Markuleski [2001] NSWCCA 290, (2001) 52 NSWLR 82
MFA v The Queen [2002] HCA 53, (2002) 213 CLR 606
R v Murray (1987) 11 NSWLR 12
R v PMT (2003) VSCA 200, (2003) 8 VR 50
R v Stone (unreported, 13 December 1954)

TEXTS CITED:

DECISION:
Appeal dismissed.

PUBLICATION RESTRICTION:
Protect identity of victim.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/4121
McCLELLAN CJ at CL
KIRBY J
HOEBEN J
Tuesday 26 October 2010

DD v REGINA

Judgment

McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Hoeben J in draft. As his Honour makes plain this is another case in which my remarks in R v TK [2009] NSWCCA 151 at [8] are relevant. At [8] I said:
“The significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury's verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried.”
I agree with the orders proposed by Hoeben J and with his Honour’s reasons.
KIRBY J: I agree with Hoeben J.
HOEBEN J:
Nature of Appeal
The appellant faced a trial commencing 14 October 2009 at the Parramatta District Court before Judge Knox SC and a jury of twelve on an indictment containing seven counts as follows:
Count 1: Section 61I – sexual intercourse without consent with JR on 28 May 2008 (allegation of the appellant inserting his finger/s into the complainant’s vagina);
Count 2: Section 61L – indecent assault on JR on 28 May 2008 (allegation of the appellant placing his tongue inside the complainant’s mouth and kissing her);
Count 3: Section 61L…

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 DD v The Queen

Details

AGLC: DD v The Queen [2010] NSWCCA 237
Case: [2010] NSWCCA 237
Decision Date: 26 October 2010

CaseChat Overview and Summary

The case of DD v The Queen involved an appeal against conviction where the defendant was found guilty on some counts of sexual assault but acquitted on others. The issue before the court was whether the jury's verdicts were inconsistent and unreasonable, and whether they could be reconciled. The defendant also challenged the trial judge's refusal to give a direction and questioned whether the evidence was available to support the Crown's submission in the final address.

The court examined the nature of the verdicts and whether they were inconsistent and unreasonable. It found that the verdicts were capable of being reconciled, as the jury may have considered the varying degrees of proof required for each count. The court also reviewed the trial judge's refusal to give a direction and the availability of evidence to support the Crown's submission in the final address. It was determined that the evidence was available to support the Crown's submission, and the trial judge's decision to refuse the direction was not erroneous.

The appeal against the conviction was dismissed, as the court found the jury's verdicts were not inconsistent and unreasonable. The court upheld the conviction on the counts where the defendant was found guilty, and the acquittal on the other counts remained. The court's decision also confirmed that the evidence was available to support the Crown's submission in the final address, and the trial judge's refusal to give a direction was not erroneous.

The final orders of the court were that the appeal against conviction was dismissed, and the convictions on some counts of sexual assault were upheld. The acquittal on the other counts remained. The court did not alter the sentences imposed by the trial judge.

Orders