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EK v The Queen

EK v The Queen

Case [2010] NSWCCA 199 8 September 2010

Appeal

Perverting the Course of Justice

Jurisdiction

Purposive Interpretation

Statutory Construction

Criminal Law

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Reported Decision: 208 A Crim R 157

New South Wales

Court of Criminal Appeal

CITATION: EK v R [2010] NSWCCA 199

HEARING DATE(S): 17 May 2010

JUDGMENT DATE:
8 September 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; RA Hulme J at 23

DECISION: (1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – offences relating to the administration of justice – perverting the course of justice – CRIMINAL LAW – appeal against verdicts of a jury empanelled pursuant to s 19 Mental Health (Forensic Provisions) Act 1990 – whether a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act is, for the purposes of s 306I(1) of the Criminal Procedure Act, “a new trial” or “new trial proceedings” – whether s 306I(1) operates to permit evidence given by complainant in earlier trial to be tendered – whether trial judge failed properly to direct jury in relation to evidence of second pregnancy and DNA evidence – appropriate instructions given – ground without merit, leave to rely upon it refused – whether error in finding it was an aggravating factor that sexual offences were committed in the complainant’s home – STATUTES – Acts of parliament – interpretation – general approaches to interpretation – purposive approach – whole Act to be considered – presumptions as to legislative intention

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Criminal Procedure Amendment (Evidence) Act 2005
Criminal Procedure Amendment (Sexual and Other Offences) Act 2006
Interpretation Act 1987
Mental Health (Forensic Provisions) Act 1990

CATEGORY: Principal judgment

CASES CITED: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297
Doggett v The Queen [2001] HCA 46 at [1]; (2001) 208 CLR 343
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
R v Gazi Comert [2004] NSWCCA 125
R v Humphries [2004] NSWCCA 370
R v Knorr [2005] NSWCCA 70
R v MAJW [2007] NSWCCA 145; 171 A Crim R 407
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Young [1999] NSWCCA 166; 46 NSWLR 681
R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1
Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; (2000) 48 NSWLR 548
Subramaniam v R [2004] HCA 51; (2004) 211 ALR 1
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
Warren v R [2009] NSWCCA 176

TEXTS CITED: Australian Law Dictionary, Oxford University Press (2010)
Butterworths Australian Legal Dictionary, Butterworths, (1997)
Jowitt’s Dictionary of English Law, 3rd ed, Thomson Reuters…

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 EK v The Queen

Details

AGLC: EK v The Queen [2010] NSWCCA 199
Case: [2010] NSWCCA 199
Decision Date: 8 September 2010

CaseChat Overview and Summary

In this case, EK was convicted of multiple sexual offences against a woman, and perverting the course of justice. The appeal was brought before the court against the verdicts of a jury empanelled pursuant to section 19 of the Mental Health (Forensic Provisions) Act 1990. The appellant argued that the trial judge failed to properly direct the jury in relation to evidence of a second pregnancy and DNA evidence, and that the trial judge erred in finding it was an aggravating factor that the sexual offences were committed in the complainant’s home. The appeal also questioned whether the special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act was, for the purposes of section 306I(1) of the Criminal Procedure Act, “a new trial” or “new trial proceedings”, and whether section 306I(1) operated to permit evidence given by the complainant in the earlier trial to be tendered.

The court considered the purposive approach to statutory interpretation, examining the whole Act and legislative intention. The court held that the trial judge had not failed to properly direct the jury, and that the instructions given were appropriate. The court found that the ground regarding the evidence of the second pregnancy and DNA evidence was without merit, and refused leave to rely upon it. The court also found that it was not an error to consider the location of the sexual offences as an aggravating factor. The court further held that the special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act was not a “new trial” or “new trial proceedings” for the purposes of section 306I(1) of the Criminal Procedure Act, and that section 306I(1) did not operate to permit evidence given by the complainant in the earlier trial to be tendered.

The appeal was dismissed, and the convictions and sentences were affirmed. The court's decision was based on the appropriate interpretation of the relevant statutes and the trial judge's directions to the jury. The appellant's arguments were found to be without merit, and the lower court's findings were upheld. The court's ruling reinforces the importance of considering the whole Act and legislative intention when interpreting statutes and the trial judge's role in directing the jury.

Orders