DJS v R

Case [2010] NSWCCA 200

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DJS v R [2010] NSWCCA 200
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/0657

HEARING DATE(S):
14 July 2010

JUDGMENT DATE:
8 September 2010

PARTIES:
DJS (appellant)
The Crown

JUDGMENT OF:
Hodgson JA Kirby J Whealy J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2008/657

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

LOWER COURT DATE OF DECISION:
3 October 2008

COUNSEL:
S BUCHEN  (appellant)
S DOWLING/ B KAPLAN  (Crown) 

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

CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – Sexual assaults – Tendency evidence – Trial judge does not direct jury that uncharged incidents suggesting sexual interest in the complainant must be proved beyond reasonable doubt – Whether a miscarriage of justice – Whether the proviso to s 6 of the Criminal Appeal Act 1912 should be applied. 

LEGISLATION CITED:
Criminal Appeal Act 1912 s 6
Criminal Procedure Act 1986 s 294B
Evidence Act 1995 s 97

CATEGORY:
Principal judgment

CASES CITED:
R v ATM [2000] NSWCCA 475
DJV v R [2008] NSWCCA 272
Gipp v The Queen [1998] HCA 21; 194 CLR 106
R v Haggerty [2004] NSWCCA 89; (2004) 145 A Crim R 138
HML v The Queen [2008] HCA 16; 235 CLR 334
JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333
Rees v R [2010] NSWCCA 66
RWB v R [2010] NSWCCA 147
R v TAB [2002] NSWCCA 274
R v Toki (No. 3) [2000] NSWSC 999; (2000) 116 A Crim R 536
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

TEXTS CITED:

DECISION:
Appeal dismissed. 

JUDGMENT:

- 26 -

IN THE COURT OF
CRIMINAL APPEAL

2008/0657

HODGSON JA
KIRBY J
WHEALY J

8 SEPTEMBER 2010

DJS v R

Judgment

  1. HODGSON JA:  On 11 August 2008, the appellant was arraigned before Blackmore DCJ on seven counts, charging him with various sex offences involving the complainant, his stepdaughter. 

  2. There were three counts alleging sexual intercourse with the complainant without her consent, knowing she was not consenting, when the complainant was under the age of 16 (counts 1, 4 and 6).  There were alternative counts to each of these, alleging sexual intercourse with the complainant, a child above the age of 10 years and under the age of 14 years (in the case of count 2) or above the age of 14 years and under the age of 16 years (in the case of counts 5 and 7).  There was one count of indecent assault on the complainant, a child under the age of 16 years (count 3). 

  3. Counts 1 and 2 were alleged to have occurred between 22 and 24 September 2005 at Thurgoona NSW.  Count 3 was alleged to have occurred between 1 and 30 April 2007 at Albury NSW.  Counts 4 – 7 were alleged to have occurred between…

Continue reading DJS v R

Sign in free to access the full text

Details
AGLC
DJS v R [2010] NSWCCA 200
Case
[2010] NSWCCA 200
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction for sexual offences against his stepdaughter. The appeal was heard by the NSW Court of Criminal Appeal, with the decision being that the appeal should be dismissed. The appellant had been convicted of two counts of sexual penetration without consent, contrary to s 61HA(1) of the Crimes Act 1900 (NSW), and one count of sexual intercourse without consent, contrary to s 61I(1)(a) of the same Act. The appellant had been sentenced to a total of 16 years imprisonment, with a non-parole period of 12 years.

The legal issue that the court was required to decide was whether the trial judge’s failure to direct the jury that uncharged incidents suggesting sexual interest in the complainant must be proved beyond reasonable doubt amounted to a miscarriage of justice. The appellant argued that the trial judge should have directed the jury that the uncharged incidents had to be proved beyond reasonable doubt, and that this failure deprived him of a fair trial. The appellant submitted that the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) should be applied, which provides that an appeal against conviction shall not be allowed unless the court is of the opinion that a miscarriage of justice has actually occurred or that the appellant was deprived of a fair trial. The Crown submitted that the trial judge’s failure to give a direction on the uncharged incidents did not amount to a miscarriage of justice, and that the appellant was not deprived of a fair trial.

The court held that the trial judge’s failure to direct the jury that the uncharged incidents had to be proved beyond reasonable doubt was an error, but it did not amount to a miscarriage of justice. The court held that the error did not deprive the appellant of a fair trial, as the jury would have been aware that the uncharged incidents had to be proved beyond reasonable doubt, and the appellant did not submit that any prejudice arose from the trial judge’s failure to give the direction. The court held that the evidence of the complainant was clear, cogent and compelling, and that the jury had been properly directed on the principles of corroboration and on the need to be satisfied beyond reasonable doubt of the appellant’s guilt. The court held that the error was not so fundamental as to deprive the appellant of a trial according to law.

The court dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals against his conviction. Background facts I will begin by outlining some background facts that can be accepted as not being in dispute. The complainant was born in September 1991 in Adelaide. While in Adelaide, the complainant’s mother C had been friendly with the appellant’s half-sister JE, and she also met the appellant there. In about 2001, C moved to Albury with three of her five children, namely her eldest daughter J, her third daughter the complainant, and the complainant’s younger brother. The complainant’s elder brother joined them in Albury later. At the same time, the appellant’s half-sister JE moved to Albury with her family, including her daughter NE (who had been born in October 1993). In about 2002, C formed a relationship with the appellant, following which they lived together in the Albury district, and had two daughters. In about 2003, C and the appellant were living together in a house at Thuroonga, a suburb of Albury. It appears that for at least some of that time, there were six children in the house, with the complainant sharing her bedroom with her older sister J. It appears that at some stage, J and the complainant’s elder brother left this house. In about 2005, C and the appellant and the four youngest children lived in a cabin in a caravan park for a couple of months. In about 2005 or 2006, C and the appellant and the four youngest children moved to a house in East Albury, where the complainant had her own bedroom. In Albury, C became friends with a lady CR, who had a daughter JR and a son RR. CR used to visit C at her house in Albury virtually every day. The complainant was a close friend of the appellant’s niece NE. NE would come to the East Albury house about a couple of times a week and often stay overnight, sleeping in the complainant’s bedroom. JR was also a friend of the complainant, and sometimes she stayed overnight, also sleeping in the complainant’s bedroom. The complainant also formed a girlfriend/boyfriend relationship with RR in about 2005. RR stayed overnight at the East Albury house on a small number of occasions, sleeping in the bedroom of the complainant’s younger brother. The complainant complained concerning the appellant’s conduct towards her in May 2007, first to NE and then to her school principal. She was interviewed by the police on 8 May 2007. The appellant took part in an ERISP interview on 14 August 2007 in which he denied any sexual contact with the complainant. Subsequently, the complainant tried to run away to South Australia with RR, and then did run away with him to Sydney and later to Melbourne. Crown case The complainant gave evidence through a recorded interview that a few weeks after her 13th birthday, when the family was living at Thurgoona, she was in bed one night when she woke up and found the appellant in her bed. The appellant was moving his fingers around in her vagina (counts 1 and 2). This was the first time the appellant did something to her. The complainant did not remember whether she said anything, and she did not think the appellant said anything. The complainant had her eyes closed, she opened them for a minute but she closed them again. What the appellant did hurt and made her feel “yuk”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion this is a case where it can and should be concluded that the trial judge’s error had no significance in determining the verdict. Also, having independently assessed the evidence, and taking account of the jury verdict, my determination is that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdict; and I am satisfied that no substantial miscarriage of justice actually occurred. Nor, in context, was the misdirection so fundamental that the appellant was deprived of a trial according to law. Conclusion I propose that the appeal be dismissed. KIRBY J: I agree with Hodgson JA. WHEALY J: I agree with Hodgson JA. **********

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.