GEH v R

Case [2012] NSWCCA 150 18 July 2012

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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 1995
Cases 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 180
Category: 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…

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 GEH v R

Details

AGLC: GEH v R [2012] NSWCCA 150
Case: [2012] NSWCCA 150
Decision Date: 18 July 2012

CaseChat Overview and Summary

The appellant, GEH, appealed against his conviction for drug trafficking. The appeal was heard by the court of criminal appeal in Australia. The central issue was whether the trial judge erred in excluding evidence pursuant to section 293 of the Criminal Procedure Act 1986. The court had to consider whether the evidence in question was relevant and whether the exclusion of this evidence could be said to have been an error that affected the outcome of the trial.

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