DRE v R

Case [2006] NSWCCA 280 7 September 2006

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
164 A Crim R 400

New South Wales

Court of Criminal Appeal

CITATION: DRE v REGINA [2006] NSWCCA 280

HEARING DATE(S): 6 March 2006

JUDGMENT DATE:
7 September 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 46; Adams J at 83

DECISION: Appeal dismissed

CATCHWORDS: Conviction appeal - delay - Longman direction - whether adequate - appeal dismissed (by majority)

LEGISLATION CITED: Criminal Appeal Rules r 4
Evidence Act 1906 (WA) s36BE(1)

CASES CITED: Crampton v The Queen [2000] HCA 60; 206 CLR 161
Doggett v The Queen (2001) 208 CLR 343
JJB v Regina [2006] NSWCCA 126
Longman v The Queen (1989) 168 CLR 79
R v BWT (2002) 54 NSWLR 241
R v DRE [2004] NSWCCA 305
R v Johnston (1998) 45 NSWLR 362
R v Kesisyan [2003] NSWCCA 259
R v WSP [2005] NSWCCA 427
Robinson v R [2006] NSWCCA 192

PARTIES: DRE (Appellant)
v
REGINA

FILE NUMBER(S): CCA 2005/2148

COUNSEL: Mr C B Craigie SC (Appellant)
Mr P G Ingram (Crown)

SOLICITORS: Mr S O'Connor (Appellant)
Mr S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/51/0133

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 28/02/05

2005/2148

SPIGELMAN CJ
SIMPSON J
ADAMS J
7 SEPTEMBER 2006

DRE v REGINA

Judgment

1 SPIGELMAN CJ: This is yet another case in which small differences in terminology are said to constitute failure to comply with the requirements of a warning in accordance with Longman v The Queen (1989) 168 CLR 79. It is a particular feature of the present case that the failure to give such a warning at all was one of a number of grounds of appeal upheld by this Court in the first trial for these offences. (See R v DRE [2004] NSWCCA 305.)

2 In the second trial a Longman warning was given, but is said to have been inadequate.

3 The general background of the relationship of the complainant and the Appellant together with the details of each of the five alleged incidents the subject of the respective counts on the Indictment are set out by Adams J.

4 This is at best a borderline case for a Longman warning. With respect to Count 5 the delay before the first interview with police was only a few months. With respect to the other counts it was some three years before revelation to the police, albeit another two and a half years elapsed before the allegations were provided in detail to the Appellant. The case has proceeded on the basis that a Longman warning was required. The only issue before this Court is its adequacy.

5 The relevant portion of his Honour’s summing-up is set out in full by Adams J.

Rule 4

6 The Crown relies on r 4 of the Criminal Appeal Rules. The passage in which trial counsel indicated that he did not require any redirection is set out by Adams J. What the trial judge referred…

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 DRE v R

Details

AGLC: DRE v R [2006] NSWCCA 280
Case: [2006] NSWCCA 280
Decision Date: 7 September 2006

CaseChat Overview and Summary

In this appeal, DRE sought to overturn his conviction for offences of indecent assault and sexual intercourse without consent. The High Court heard the matter, which was a review of the earlier decision by the Court of Criminal Appeal of Victoria. The central issue for the court was whether the delay in bringing the case to trial was such that it constituted a breach of the principles enunciated by the High Court in Longman v The Queen. These principles are designed to protect the right of an accused to a fair trial by ensuring that the delay does not unfairly prejudice their ability to mount a defence.

The appeal hinged on whether the trial judge's directions to the jury, which were meant to mitigate the effects of the delay, were adequate to protect the accused's rights. The court examined whether the Longman direction given was sufficient to ensure that the jury could properly consider the evidence in light of the delay and whether the accused's right to a fair trial was thereby preserved. The court also considered the broader implications of the delay on the fairness of the trial process.

In a majority decision, the court found that the trial judge had given an adequate Longman direction, which adequately addressed the issues arising from the delay. The court was satisfied that the direction provided to the jury was sufficient to ensure that the accused's right to a fair trial was upheld, and the delay did not unfairly prejudice the defence. The appeal was thus dismissed by the majority. The final orders of the court confirmed the conviction and sentence imposed by the trial judge.

Orders