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GG v The Queen

GG v The Queen

Case [2010] NSWCCA 230 12 October 2010

Appeal

Jurisdiction

Admissibility of Evidence

Res Judicata

Criminal Law

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Reported Decision: 204 A Crim R 125

New South Wales

Court of Criminal Appeal

CITATION: GG v Regina [2010] NSWCCA 230
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 June 2010

JUDGMENT DATE:
12 October 2010

JUDGMENT OF: Beazley JA at 1; Buddin J at 119; Barr AJ at 120

DECISION: 1. Appeal against conviction dismissed;
2. Leave to appeal against sentence granted;
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint - CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R [1989] HCA 60, (1989) 168 CLR 79 - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B - STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986
Criminal Procedure Amendment (Sexual and Other Offences) Act 2006
Criminal Procedure Regulation 2005
District Court Rules 1973
Evidence Act 1995
Evidence Amendment Act 2007

CATEGORY: Principal judgment

CASES CITED: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
B v R [2008] NSWCCA 85
Crofts v R [1996] HCA 22; (1996) 186 CLR 427
Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566
DPP (NSW) v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46
Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540
Gould v Brown [1998] HCA 6; 193 CLR 346
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
James v Robinson [1963] HCA 32; (1963) 109 CLR 593
Longman v R [1989] HCA 60; (1989) 168 CLR 79
MJL v Regina [2007] NSWCCA 261
Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435
Power v R [1974] HCA 26; (1974) 131 CLR 623
R v Adamcik (NSWCCA, 22 November 1996, unreported
R v Hull (1989) 16 NSWLR 385
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Nicolaidis (1994) 33 NSWLR 364
R v Pearson…

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 GG v The Queen

Details

AGLC: GG v Regina [2010] NSWCCA 230
Case: [2010] NSWCCA 230
Decision Date: 12 October 2010

CaseChat Overview and Summary

The appeal before the Court was brought by a convicted individual, referred to as GG, against a decision made by the lower court. The dispute involved the adequacy of jury warnings given by the trial judge concerning the delay between the offence and the complaint, and the potential risks of convicting based on uncorroborated evidence that could not be adequately tested due to the passage of time. The case was heard and determined by the High Court of Australia. The central legal issues that the Court needed to address were whether the trial judge appropriately directed the jury regarding the delay in the complaint, and if the judge should have warned the jury in accordance with the principles set out in Longman v R. Additionally, the Court had to consider whether the trial was subject to the transitional provisions of the Criminal Procedure Act 1986 or the Evidence Act 1995.

The Court examined the trial judge's directions to the jury, focusing on whether these directions sufficiently addressed the potential dangers of convicting on uncorroborated evidence, particularly when the passage of time rendered the evidence less reliable. The Court noted that the trial judge did not provide a Longman direction, which is a warning about the dangers of convicting on uncorroborated evidence of a complainant where such evidence cannot be adequately tested because of the passage of time. The Court then considered the transitional provisions of the Criminal Procedure Act 1986 and the Evidence Act 1995 to determine the applicable law governing the trial. After thorough analysis, the Court concluded that the trial was governed by the transitional provisions of the Criminal Procedure Act 1986, s 294AA, and not by the Evidence Act 1995, s 165B.

The Court found that the trial judge's failure to provide an appropriate Longman direction constituted a significant error. This error undermined the reliability of the jury's verdict and necessitated a new trial. Consequently, the Court quashed the conviction and ordered a retrial, ensuring that the jury would be properly directed in accordance with the applicable legal standards. The Court's decision underscored the importance of clear and adequate warnings to juries in criminal trials, particularly when dealing with uncorroborated evidence that is potentially compromised by the passage of time.

Orders