Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: GEH v R [2012] NSWCCA 150 Hearing dates: 2 July 2012 Decision date: 18 July 2012 Before: Basten JA at [1]
Harrison J at [21]
Beech-Jones J at [77]Decision: Appeal dismissed
Catchwords: CRIMINAL LAW - conviction appeal - whether trial judge wrongly excluded evidence pursuant to s 293 of the Criminal Procedure Act 1986 - evidence properly excluded - appeal dismissed Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995Cases Cited: BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34
Clark v The Queen [2008] NSWCCA 122; (2008) A Crim R 1
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168
R v Bernthaler (Unreported, NSWCCA, 17 December 1993)
R v Henning (Unreported, NSWCCA, 11 May 1990)
R v M (1993) 67 A Crim R 549
R v Morgan (1993) 30 NSWLR 543
R v Rahme [2004] NSWCCA 233
R v Tubou [2001] NSWCCA 243
R v Villar; R v Zugecic [2004] NSWCCA 302
R v Warner (Unreported, NSWCCA, 7 May 1997)
R v White (1989) 46 A Crim R 251; (1989) 18 NSWLR 332
Taylor v The Queen [2009] NSWCCA 180Category: Principal judgment Parties: GEH (Applicant)
Crown (Respondent)Representation: Counsel:
C Smith (Applicant)
M M Cinque (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2010/63911 Publication restriction: The complainant and the appellant to be identified by pseudonym only Decision under appeal
- Date of Decision:
- 2011-03-25 00:00:00
- Before:
- Neilson DCJ
- File Number(s):
- 2010/63911
JUDGMENT
BASTEN JA: In March 2011 the appellant was convicted by a jury on two counts of aggravated sexual intercourse with a child between the ages of 10 and 16 years, who was under his authority at the time of the offence. The complainant was his stepdaughter. The charges related to two occasions, when the complainant was 15 years of age, the events occurring in April and October/November 1992 respectively.
On the appeal the appellant challenged the correctness in law of the exclusion by the trial judge of evidence which might have disclosed or implied sexual activity (or the lack thereof) on the part of the complainant on another occasion, some eight months later. The entitlement to proffer such evidence was said to arise by way of an exception to the general exclusionary rule contained in s 293 of the Criminal Procedure Act 1986 (NSW). I agree with Harrison J that the appeal should be dismissed.
It is not necessary in these reasons to repeat the circumstances of the trial which are set out by Harrison J. The relevant parts of s 293 may be found at [33] below.
The impugned evidence
The complainant gave evidence as to her relationship with her stepfather, who was living in the complainant's home by April 1992. Her evidence included the…
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- GEH v R [2012] NSWCCA 150
- Case
- [2012] NSWCCA 150
- Decision Date
CaseChat Overview and Summary
The court examined the legal criteria for the exclusion of evidence under section 293 of the Criminal Procedure Act 1986. It considered whether the evidence in question had probative value and whether the exclusion of this evidence could be said to have affected the fairness of the trial. The court also evaluated the relevance of the excluded evidence to the facts of the case and the overall impact it might have had on the jury’s decision-making process.
After a thorough review of the evidence and the trial judge’s decision, the court concluded that the exclusion of the evidence was not an error that affected the fairness of the trial. The court held that the evidence was properly excluded under section 293 of the Criminal Procedure Act 1986. Therefore, the appeal was dismissed. The court found no grounds to overturn the conviction based on the exclusion of the evidence.
The court did not make any further orders beyond dismissing the appeal. The conviction of GEH for drug trafficking was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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