CITATION: DJB v R R v DJB [2007] NSWCCA 209

HEARING DATE(S): 18 May 2007

JUDGMENT DATE:
17 July 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 87; Price J at 89

DECISION: 1. Appeal against convictions dismissed; 2. Crown appeal allowed; 3. The commencement date and the expiration date which were fixed by the judge in the District Court for count 2 be set aside; 4. In respect of count 2 the non-parole period of 8 years is to commence on 11 October 2006 and is to expire on 10 October 2014. The balance of term is to commence on 11 October 2014 and is to expire on 10 October 2018; 5. Total effective sentence of imprisonment is a non-parole period of 10 years with a balance of term of 4 years; 6. The earliest date for release to parole is 10 October 2014.

CATCHWORDS: CRIMINAL LAW - Conviction appeal and Crown appeal against sentence - unlawfully administering an overpowering drug Diazepam with intent to have sexual intercourse - sexual intercourse without consent - 14 year old victim - amendment made to original indictment - whether trial a nullity - directions to jury - whether directions caused jury to confuse the conduct of the appellant with that of his son - whether jury was misdirected on intoxication - whether trial judge unreasonably restrained the appellant’s cross-examination rights - CROWN APPEAL - whether offences involved distinct acts of criminality - failure to accumulate sentences found

LEGISLATION CITED: Criminal Procedure Act 1986 (NSW)
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

CASES CITED: Des Rosiers v R [2006] NSWCCA 16
MLP v Regina [2006] NSWCCA 271
Munday v Gill (1930) 44 CLR 38
Pearce v The Queen (1998) 194 CLR 610
R v Howard (1992) 29 NSWLR 242
R v Janceski (2005) 64 NSWLR 10
R v Landy [1943] VLR 73
R v Mills (2005) 154 A Crim R 40
R v Moffit (1990) 20 NSWLR 114
R v Qutami (2001) 127 A Crim R 369
R v Sepulveda [2003] NSWCCA 131
R v Ta (2003) 57 NSWLR 444
R v Tagaras (NSWCCA, unreported, 9 April 1974)
R v Taylor [2003] NSWCCA 194
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 168
Regina v Stankovic [2006] NSWCCA 229
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: DJB (Appl in 2007/603 - Resp in 2006/2367)
The Crown (Appl in 2006/2367)

FILE NUMBER(S): CCA 2007/603; 2006/2367

COUNSEL: M C Ramage QC (DJB)
L M B Lamprati SC (Crown)

SOLICITORS: Jeffreys & Associates (DJB)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0122

LOWER COURT JUDICIAL OFFICER: Andrews ADCJ

LOWER COURT DATE OF DECISION: 29 August 2006

2007/603
2006/2367

McCLELLAN CJ at CL
HIDDEN J
PRICE J
TUESDAY 17 JULY 2007

DJB v R

R v DJB

Judgment

1 McCLELLAN CJ at CL

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 DJB v R R v DJB

Details

AGLC: DJB v R R v DJB [2007] NSWCCA 209
Case: [2007] NSWCCA 209
Decision Date: 17 July 2007

CaseChat Overview and Summary

The case involved DJB, who was convicted of administering a drug with intent and engaging in sexual intercourse without consent with a 14-year-old victim. DJB appealed against his conviction, and the Crown appealed against the sentence. The legal issues before the court included whether the trial was a nullity due to an amendment to the original indictment, whether the directions to the jury caused confusion between DJB's conduct and that of his son, whether the jury was misdirected on the issue of intoxication, and whether the trial judge unreasonably restrained DJB's cross-examination rights. Additionally, the court considered whether the Crown's appeal regarding the accumulation of sentences was valid.

The court found that the amendment to the indictment did not render the trial a nullity, as the amendment was not material and did not prejudice DJB's case. The court also determined that the jury directions did not cause confusion between DJB's conduct and that of his son, as the directions were clear and appropriately tailored to the evidence presented. Furthermore, the court held that the jury was not misdirected on the issue of intoxication, as the trial judge had provided appropriate directions on the matter. The court found that the trial judge did not unreasonably restrain DJB's cross-examination rights, as the restrictions were justified and proportionate to the circumstances of the case. Regarding the Crown's appeal, the court found that the offences involved distinct acts of criminality, and thus the sentences should not have been accumulated. Consequently, the Crown's appeal against the sentence was allowed.

DJB's conviction was upheld, but the sentences were ordered to be served concurrently, rather than cumulatively. The Crown's appeal against the sentence was allowed, and the sentences were ordered to be served concurrently. No orders were made in relation to the other issues raised by DJB's appeal.

Orders