Ge v R - [2018] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: GE v R [2018] NSWCCA 91
Hearing dates: 13 April 2018
Decision date: 11 May 2018
Before: Simpson AJA at [1];
Fullerton J at [2];
McCallum J at [53]
Decision:
Leave to appeal refused; appeal dismissed

Catchwords: CRIMINAL LAW – appeal against conviction – sexual offences against a child family member – where Crown case included alleged admissions including general admissions not referring to any particular act, charged or uncharged, and specific admissions of uncharged acts – whether the trial judge failed to give adequate direction as to the way in which that evidence could be used
Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66C(2)
Criminal Appeal Rules (NSW), r 4
Cases Cited: ARS v R [2011] NSWCCA 266
Dent v R [2017] NSWCCA 166
Greenhalgh v R [2017] NSWCCA 94
Rolfe v R [2007] NSWCCA 155; 173 A Crim R 168
Category: Principal judgment
Parties: GE (Applicant)
The Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
F Veltro (Crown)
Solicitors:
Aaron Joseph Isaacs Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/69424
Publication restriction: Identification of the complainant is prohibited under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The names of the applicant and certain witnesses are anonymised in this judgment to avoid identifying the complainant
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

2 August 2016

Before:

Norton DCJ

File Number(s):

2014/69424

Judgment

SIMPSON AJA: I agree with Fullerton J.
FULLERTON J: On 19 July 2016 the applicant entered pleas of not guilty to an indictment containing ten counts (Counts 4 and 5 being cast in the alternative), each of which alleged sexual misconduct against CE, his adopted daughter.
The trial on that indictment was convened before Norton DCJ and a jury.
On 1 August 2016 the jury returned verdicts of not guilty in respect of Counts 2, 4 and 6 on the indictment. Count 2 charged an aggravated sexual intercourse with a child under 10 years, and Count 4 an aggravated sexual intercourse with a child between the age of 10 and 14 years. Count 2 involved an allegation of oral intercourse while Count 4 involved an allegation of anal intercourse. Count 6 charged an act of incitement of a child under the age of 16 to commit an act of indecency.
On 2 August 2016 the jury returned verdicts of guilty in respect of Counts 7 and 9 on the indictment. Count 7 charged an aggravated intercourse with a child over the age of 10 years and under the age of 14 years, involving oral intercourse, contrary to s 66C(2) of the Crimes Act 1900 (NSW). Count 9 charged an aggravated indecent assault with a child under the age of 16 years, involving a squeezing of CE’s buttocks, contrary to s 61M(2) of the Crimes Act.
On 2 August 2016 the jury also returned verdicts of not guilty in respect 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 Ge v R

Details

AGLC: GE v The Queen [2018] NSWCCA 91
Case: [2018] NSWCCA 91
Decision Date: 11 May 2018

CaseChat Overview and Summary

The matter of Ge v R involved the appellant, Ge, who appealed against his conviction for sexual offences against a child family member. The case was heard in the High Court of Australia, which heard the appeal from the decision of the Court of Criminal Appeal of Western Australia. The appellant was convicted of multiple offences, including indecently dealing with a child under the age of 16 years, and engaging in sexual penetration with a child under 16 years. The appellant claimed that the trial judge failed to provide adequate direction to the jury regarding the way in which the evidence of alleged admissions could be used.

The central issue before the court was whether the trial judge failed to give adequate direction as to the way in which evidence of alleged admissions could be used by the jury. Specifically, the court was required to determine whether the trial judge gave appropriate directions to the jury regarding the use of general admissions, which did not refer to any particular act, as well as specific admissions of uncharged acts. The appellant argued that the trial judge's directions were insufficient and prejudicial, leading to an unsafe and unsatisfactory verdict.

The court considered the relevant authorities and principles concerning the admissibility and use of evidence of admissions. The court found that the trial judge did provide adequate directions to the jury regarding the use of evidence of admissions. The judge clearly explained the distinction between general admissions and specific admissions and the limited circumstances in which each could be considered by the jury. The court held that the trial judge's directions were sufficient to ensure that the jury understood the limitations on the use of evidence of admissions and that the appellant's convictions were safe and satisfactory. The appeal was therefore dismissed.

The High Court of Australia dismissed the appeal and affirmed the appellant's convictions. The court found that the trial judge provided adequate directions to the jury regarding the use of evidence of admissions, and that the appellant's convictions were safe and satisfactory. The court held that the appellant's argument that the trial judge failed to give adequate direction was without merit. The appeal was dismissed, and the convictions stood as affirmed.

Orders