GDD v R

Case [2010] NSWCCA 62 15 April 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
GDD v R; NJC v R [2010] NSWCCA 62

FILE NUMBER(S):
2007/15644
2007/13935

HEARING DATE(S):
11 February 2010

JUDGMENT DATE:
15 April 2010

PARTIES:
GDD - Applicant
NJC - Applicant
Regina - Respondent/Crown

JUDGMENT OF:
Grove J Simpson J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0892, 2007/11/0924

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
30 January 2009

COUNSEL:
G Brady with E Cowpe - Applicant GDD
T Gartelmann - Applicant NJC
M Grogan - Respondent/Crown

SOLICITORS:
Nyman Gibson Stewart - Applicant GDD
S O'Connor, Legal Aid Commission - Applicant NJC
S Kavanagh, Solicitor for Public Prosecutions -Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Trial
Address by Crown Prosecutor
Alleged misstatements of fact
Departures from the Crown case as presented, inapt submissions to the jury, assertions of personal opinion
HELD - (Grove J and Simpson J
RA Hulme J dissenting)
The cumulative effect of the defects in the Crown Prosecutor's address and the insufficiency of some corrections by the presiding Judge caused a miscarriage

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Causevic v R [2008] NSWCCA 238
Gonzales v R [2007] NSWCCA 321
Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309
Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
M v The Queen (1995) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227
R v Liristis (2004) 146 A Crim R 547
R v McCullough (1982) 6 A Crim R 274
R v Roulston (1976) 2 NZLR 644
R v Rugan (2001) 122 A Crim R 1
Whitehorn v The Queen (1983) 152 CLR 657

TEXTS CITED:

DECISION:
In each appeal, appeal allowed.
Conviction and sentence quashed.
New trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15644
CCA 2007/13935
GROVE J
SIMPSON J
RA HULME J
15 April 2010

GDD v R
NJC v R

Judgment

GROVE J: The appellants GDD (a male) and NJC (a female) were jointly tried and convicted before King DCJ and a jury at Sydney District Court on a count of aggravated sexual assault in company contrary to s 61J (1) of the Crimes Act 1900. They were acquitted by the jury on a count charging the same conduct with an additional ingredient of deprivation of liberty, charged contrary to 61JA (1) of that Act. They were each sentenced to a term of imprisonment.
GDD appeals against his conviction on these grounds:
“1.The Crown Prosecutor’s final address to the jury led to a miscarriage of justice.
2.The trial judge erred in failing to discharge the jury at the close of the Crown Prosecutor’s final address.
3.The trial judge erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments by the Crown Prosecutor in her address to the jury.
4.The verdict was unreasonable or cannot be…

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 GDD v R

Details

AGLC: GDD v R; NJC v R [2010] NSWCCA 62
Case: [2010] NSWCCA 62
Decision Date: 15 April 2010

CaseChat Overview and Summary

GDD, the defendant, was on trial in the Supreme Court of Victoria against the Crown for a criminal offence. The nature of the dispute was centred around alleged misstatements of fact made by the Crown Prosecutor during the trial, as well as departures from the Crown case as presented, inapt submissions to the jury, and assertions of personal opinion. The case was heard by Grove J and Simpson J, with RA Hulme J dissenting.

The legal issues before the court were whether the misstatements of fact, departures from the Crown case, inapt submissions, and personal opinions by the Crown Prosecutor were significant enough to cause a miscarriage of justice. The court had to consider whether these errors were so substantial that they affected the fairness of the trial and whether the judge's corrections were adequate to remedy any prejudice caused to the defendant.

In its decision, the court held that the cumulative effect of the defects in the Crown Prosecutor's address and the insufficiency of some corrections by the presiding Judge indeed caused a miscarriage of justice. The misstatements of fact, departures from the Crown case, inapt submissions, and personal opinions were found to have a significant impact on the fairness of the trial, as they potentially influenced the jury's decision-making process. The court concluded that the errors were not minor or trivial, and the corrections made by the presiding Judge were not enough to mitigate the prejudicial effect of these issues on the trial's outcome.

The final orders of the court were that the conviction of GDD be quashed, and a new trial be ordered. This decision highlights the importance of maintaining the integrity of criminal trials and the need for Crown Prosecutors to adhere to legal standards and principles during their addresses to the court.

Orders