DG v The Queen

DG v THE QUEEN
[2003] ACTCA 3 (11 FEBRUARY 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 9 - 2002
No. SCC 164 of 2001

Judges: Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date: 11 February 2003

IN THE SUPREME COURT OF THE     )          No. ACTCA 9 - 2002
  )          No. SCC 164 of 2001
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DG
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  11 February 2003
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 9 - 2002
  )          No. SCC 164 of 2001
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DG
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  11 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS CJ:

In my view, no ground of appeal is made out. The sentence is not on its face manifestly excessive for the crimes to which the appellant pleaded guilty. In my view, there is no substance in the suggestion that the learned sentencing judge overlooked the fact that the sentence would have to be served in protective custody. As I have already said, it is a notorious fact in any event and that it would be surprising in the extreme if the sentencing judge had overlooked it. In my view, there is no ground of appeal which has been made out, so I would dismiss the appeal.

I certify that the preceding paragraph is a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 26 February 2003

IN THE SUPREME COURT OF THE     )          No. ACTCA 9 - 2002
  )          No. SCC 164 of 2001
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DG
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  11 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P:

I agree with the Chief Justice and would add only that in my opinion, not only has no error been demonstrated, but the objective gravity of the offences amply required the sentence that was imposed upon the appellant. I too would dismiss the appeal.

I certify that the preceding paragraph is a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 26 February 2003

IN THE SUPREME COURT OF THE     )          No. ACTCA 9 - 2002
  )          No. SCC 164 of 2001
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DG
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  11 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

MADGWICK J:

I too agree with what has fallen from the Chief Justice and Crispin P. In relation to the protective custody point, not only is it inconceivable that his Honour did not take it into account, but, granted the truth of what Justice Kirby said in AB v The Queen [1989] 198 CLR 111, as to the very onerous circumstances and protective custody as against ordinary custody, this was a case that really falls close to being in the very worst class of cases of this kind, and it does not seem to me that any error has been shown.

I certify that the preceding paragraph is a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Justice Madgwick.
Associate:
Date: 26 February 2003

IN THE SUPREME COURT OF THE     )          No. ACTCA 9 - 2002
  )          No. SCC 164 of 2001
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DG
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  11 February 2003
Place:  Canberra

EX TEMPORE ORDER

HIGGINS CJ:

The order of the court is the appeal is dismissed.

I certify that the preceding paragraph is a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 26 February 2003

Counsel for the Appellant: Mr J Sabharwal

Solicitor for the Appellant: Lander & Co

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 11 February 2003

Date of judgment: 11 February 2003

The applicant, DG, appealed to the High Court of Australia against a decision of the Supreme Court of Queensland (Court of Appeal) which had dismissed DG's appeal against a conviction for a sexual offence. The central dispute concerned the admissibility of certain evidence during DG's trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of prior sexual conduct by the applicant, which was admitted pursuant to s 137 of the *Uniform Civil Procedure Rules 1999* (Qld) (UCPR). Specifically, the court considered whether the prejudicial effect of this evidence outweighed its probative value, and whether the trial judge had adequately considered this balance when making the decision to admit the evidence.

The High Court held that the trial judge had properly exercised their discretion under s 137 of the UCPR. The Court reasoned that the evidence of prior sexual conduct was relevant to establishing a pattern of behaviour and was not merely introduced to show that the applicant was a person of bad character. The judge had carefully weighed the potential prejudice against the probative value, and the admission of the evidence did not occasion a substantial miscarriage of justice.

The appeal was therefore dismissed.

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