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ELD v Regina

ELD v Regina

Case [2005] NSWCCA 466 2 December 2005

Appeal

Admissibility of Evidence

Jurisdiction

Jury Verdict

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ELD v Regina [2005] NSWCCA 466
Hearing dates: 8 November 2005
Decision date: 02 December 2005
Before: Sully J at 1; Hulme J at 98; Latham J at 118
Decision:
In the first trial orders are: that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be a new trial.; In the second trial orders are by majority, (Hulme J dissenting): that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be entered in lieu a directed verdict of acquittal on Count 3 in the relevant indictment.

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
The Queen v Carroll [2002] 213 CLR 635
Regina v Z [2002] 2 A.0 483
R v Degnan [2001] 1 NZLR 280
Garrett v The Queen [1997] 139 CLR 437
Pfennig v The Queen [1995] 182 CLR 461
Browne v Dunn (1893) 6 R 67
M y The Queen (1994) 181 CLR 487
R v Markuleski [2001] 52 NSWLR 82
M.F.A v The Queen [2002] 213 CLR 606
R v Vinh Le [2000] NSWCCA 49
R v Storey (1978) 140 CLR 364
Mackenzie v R (1996) 190 CLR 348
R v Kirkham (1987) 44 SASR 591

Category: Principal judgment
Parties: ELD
Regina
Representation:
Counsel:
W. Roser - Crown
S. Odgers SC - Appellant
Solicitors:
S. Kavanagh - Crown
Trisley Kilmurray Lawyers

File Number(s): CCA 2005/1191; 2005/1205
Decision under appeal

Court or tribunal:

District Court

Before:

English DCJ

File Number(s):

02/31/0411

Judgment

SULLY J:

NON-PUBLICATION ORDER

The Court orders:

1. That in any reporting of this judgment or of the proceedings giving rise to it, the appellant and the complainants are to be referred to only by initials used in this judgment.

2. That nothing else be published that would identify the appellant or the complainants.

3. That the judgment not be published on the Court’s web site.

Introduction

The appellant Mr. D has stood trial on three separate occasions.
In November 2003 the appellant stood trial in the District Court upon an indictment containing two counts. Count 1 charged that between 1 January 2000 and 31 January 2000 the appellant had assaulted one ED., committing upon her at the time of such assault an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 10 years. Such an offence contravenes section 61M(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. Count 2 charged that on 29 January 2002 the appellant had assaulted ED, committing upon her at that time an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 16 years. Such an offence contravenes section 61M(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty 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 ELD v Regina

Details

AGLC: ELD v Regina [2005] NSWCCA 466
Case: [2005] NSWCCA 466
Decision Date: 02 December 2005

CaseChat Overview and Summary

The appellant, ELD, was convicted in the District Court on three separate occasions of various indecent assaults. The convictions were quashed by the Court of Criminal Appeal. The first trial related to two counts of indecent assault of a minor. The appellant was acquitted on both counts. In the first appeal, the appellant challenged the admission of evidence given by another complainant, ED, who had previously been acquitted of charges against the appellant. The evidence was deemed inadmissible due to errors in the trial judge's balancing exercise under sections 101(2) and 137 of the Evidence Act 1995 (NSW), as well as inadequate directions given to the jury regarding the use of this evidence. As a result, the appeal against conviction was allowed, the conviction and sentence were quashed, and a new trial was ordered.

In the second trial, the appellant was convicted on three counts of indecent assault. He appealed against his conviction on Count 3, arguing that the trial judge failed to give proper directions to the jury regarding the complainant's alleged motive to lie and that the verdict on Count 3 was inconsistent with the verdicts on Counts 1 and 2. The majority of the court found that while the trial judge's directions on the motive to lie were inadequate, the inconsistency in the verdicts did not necessarily indicate a miscarriage of justice. The appeal against conviction was allowed, the conviction and sentence were quashed, and a directed verdict of acquittal was entered in lieu on Count 3 in the relevant indictment.

Orders