DICK -v- THE QUEEN [2002] WASCA 310

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 310
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:119/2001	Heard:	10 SEPTEMBER 2002
Coram:	WALLWORK J MURRAY J ANDERSON J	Delivered:	22/11/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JAMES FLAVELL DICK THE QUEEN
Catchwords:	Criminal law Sexual offences Directions concerning consent Whether adequate Whether honest and reasonable mistake should have been left to jury
Legislation:	Criminal Code (WA), s 319(2)
Case References:	Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129 McKenzie v C J Coles & Co Ltd (1986) WAR 224 Proudman v Dayman (1941) 67 CLR 536 Case Stated by DPP (No 1 of 1993) 1993 66 A Crim R 259 Papdimitropoulos (1957) 98 CLR 249 S (1989) 64 ALJR 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DICK -v- THE QUEEN [2002] WASCA 310 CORAM : WALLWORK J

MURRAY J

ANDERSON J

HEARD : 10 SEPTEMBER 2002 DELIVERED : 22 NOVEMBER 2002 FILE NO/S : CCA 119 of 2001 BETWEEN : JAMES FLAVELL DICK

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sexual offences - Directions concerning consent - Whether adequate - Whether honest and reasonable mistake should have been left to jury

Legislation:

Criminal Code (WA), s319(2)

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr R D Young

Respondent : Mr K M Tavener

Solicitors:

Appellant : Gunning Young

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129
McKenzie v C J Coles & Co Ltd (1986) WAR 224
Proudman v Dayman (1941) 67 CLR 536

Case(s) also cited:

Case Stated by DPP (No 1 of 1993) 1993 66 A Crim R 259
Papdimitropoulos (1957) 98 CLR 249
S (1989) 64 ALJR 126

(Page 3)

1 WALLWORK J: On 30 July 2001 the appellant was convicted of four counts in a six count indictment. He was acquitted on the other two counts. He now appeals against the convictions.

2 The first two offences of which he was convicted were that on the same day he had sexually penetrated a boy who was under the age of 16 years, without the boy's consent. On the first occasion the applicant had introduced his penis into the boy's mouth. On the second he penetrated the boy's anus with his penis.

3 The third offence of which the appellant was convicted was that he had indecently dealt with a child between the ages of 13 and 16 years by masturbating himself in the child's presence. The fourth conviction concerned a charge that the appellant had attempted to sexually penetrate the victim who by then was 20 years of age by attempting to penetrate the victim's anus with his penis.

Directions Concerning Consent

4 As counsel for the appellant put it at the hearing of…

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 Dick v The Queen

Details

AGLC: Dick v The Queen [2002] WASCA 310
Case: [2002] WASCA 310
Decision Date: 22 NOVEMBER 2002

CaseChat Overview and Summary

The case of Dick v The Queen involved the appellant, who was convicted of various sexual offences, appealing against his conviction. The central issue in this appeal was whether the trial judge adequately directed the jury concerning the concept of consent, specifically whether the jury should have been left to consider the possibility of an honest and reasonable mistake regarding consent. The appeal was heard by the High Court of Australia, which was required to determine whether the trial judge's directions to the jury on the issue of consent were sufficient under the law.

The legal issue before the court was whether the trial judge's directions to the jury regarding consent were adequate and whether the trial judge should have allowed the jury to consider the possibility of an honest and reasonable mistake about consent. The appellant argued that the trial judge's directions did not adequately encompass the concept of an honest and reasonable mistake, and that this was a significant omission that required the jury to consider. The respondent, The Queen, submitted that the trial judge's directions were appropriate and that no further direction on the issue of an honest and reasonable mistake was necessary.

The High Court found that the trial judge's directions to the jury on the issue of consent were adequate and did not require the inclusion of an honest and reasonable mistake as a potential consideration for the jury. The Court held that the trial judge's directions were in line with established legal principles and that it was not necessary to leave the issue of an honest and reasonable mistake to the jury. The Court concluded that the trial judge had appropriately directed the jury on the elements of the offences and the necessary legal standards, and that the absence of a specific direction on an honest and reasonable mistake did not render the trial unfair or result in a miscarriage of justice. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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