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Galea v Galea

Galea v Galea

Case [2015] NSWCCA 215 26 August 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: RP v R [2015] NSWCCA 215
Hearing dates: 15 June 2015
Date of orders: 26 August 2015
Decision date: 26 August 2015
Before: Johnson J at [1]
Davies J at [10]
Hamill J at [119]
Decision:
1. Grant leave to appeal in respect of the conviction appeal.
2. Appeal upheld with respect to count 4.
3. Quash the conviction in respect of count 4 and enter an acquittal.
4. Dismiss the conviction appeal in respect of counts 2 and 3.
5. Leave to appeal in respect of the sentence.
6. Dismiss the sentence appeal.

Catchwords: CRIMINAL LAW – sexual intercourse with a child under 10 years – aggravated indecent assault – accused was older half-brother of victim - accused aged between 11 and 13 years – doli incapax – whether presumption rebutted – what acts may be considered – whether surrounding circumstances of first offence could be used in assessing if presumption rebutted for later offences – judge alone trial – ground of appeal asserting unreasonable verdict – how Court of Criminal Appeal considers unreasonable verdict ground in a judge alone trial – sentence – whether accused occupied a position of trust - whether manifestly excessive - totality
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: AEL v R [2007] NSWCCA 97; (2007) 170 A Crim R 355 AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Avery v R [2015] NSWCCA 50
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
BP v Regina, SW v Regina [2006] NSWCCA 172
C (A Minor) v Director of Public Prosecutions [1996] AC 1; [1995] 2 All ER 43
DK v Rooney & Anor (Supreme Court (NSW), 3 July 1996, unrep)
Filippou v R [2013] NSWCCA 92
Filippou v The Queen [2015] HCA 29
Fleming v R [1998] HCA 68; (1998) 197 CLR 250
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hedges v R [2011] NSWCCA 263
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
KRM v R [2001] HCA 11; (2001) 206 CLR 221
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Kurtic v R (1996) 85 A Crim R 57
Lazaris v R [2014] NSWCCA 163
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
R (a Child) v Whitty (1993) 66 A Crim R 462
R v ALH [2003] VSCA 129; (2003) 6 VR 276
R v CRH…

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 Galea v Galea

Details

AGLC: Galea v Galea [2015] NSWCCA 215
Case: [2015] NSWCCA 215
Decision Date: 26 August 2015

CaseChat Overview and Summary

The case of Galea v Galea involved a defendant who was accused of multiple instances of sexual intercourse with a child under the age of 10 years, as well as aggravated indecent assault. The accused, who was the older half-brother of the victim, was aged between 11 and 13 years at the time of the offences. The trial was conducted before a judge alone, and the central issue was whether the presumption of doli incapax, which protects children between 10 and 14 years from criminal responsibility, was rebutted by the surrounding circumstances. The accused's legal representatives argued that the surrounding circumstances of the first offence could not be used to assess if the presumption was rebutted for the later offences. The appeal centred on the grounds that the verdict was unreasonable and that the sentence was manifestly excessive.

The Court of Criminal Appeal examined the question of whether the presumption of doli incapax was rebutted by considering not only the acts themselves but also the surrounding circumstances of each offence. The court held that the surrounding circumstances of the first offence could indeed be taken into account when assessing whether the presumption was rebutted for the later offences. The court concluded that the verdict was not unreasonable, as the judge had properly considered the evidence and the applicable legal principles. In relation to the sentence, the court found that the accused did not occupy a position of trust, and while the sentence was severe, it was not manifestly excessive when considering the totality of the circumstances.

The Court of Criminal Appeal dismissed the appeal, affirming the conviction and sentence imposed by the trial judge. The court found that the trial judge had correctly applied the law and appropriately weighed the evidence in reaching the verdict. The sentence, while severe, was deemed to be within the range of acceptable penalties for such serious offences. The appeal was thus unsuccessful, and the convictions and sentence were upheld.

Orders