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GL v Regina

GL v Regina

Case [2014] NSWCCA 68 9 May 2014

Appeal

Breach of Trust

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GL v Regina [2014] NSWCCA 68
Hearing dates: 26 March 2014
Decision date: 09 May 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [151]
Adamson J at [159]
Decision:
1. The conviction of the appellant in respect of counts 1, 3, 5, and 6 on 5 June 2013 is quashed.
2. A new trial be ordered.

Catchwords: CRIMINAL LAW - conviction appeal - two counts of aggravated sexual assault and two counts of indecent assault of a child under 16 years - whether summing up by trial judge was deficient - whether trial judge misdirected the jury
Legislation Cited: Crimes Act 1900 - s 61J, s 61M(2)
Criminal Procedure Act 1986 - s 294B(7), s 306X
Jury Act 1997 - s 53C
Cases Cited: AP v R [2013] NSWCCA 189
BG v R [2012] NSWCCA 139
FP v R [2012] NSWCCA 182
May v O'Sullivan [1955] HCA 38; 92 CLR 654
Papakosmos v R [1999] HCA 37; 196 CLR 297
R v Condon (1995) 83 A Crim R 335
R v Germakian [2007] NSWCCA 373; 70 NSWLR 467
R v Meher [2004] NSWCCA 355
R v Ward [2012] NSWCCA 46
RPS v R [2000] HCA 3; 199 CLR 620
Wong v R [2009] NSWCCA 101
Sami Kurdi v R [2011] NSWCCA 179
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: GL - Appellant
Regina - Respondent Crown
Representation: Counsel:
PD Rosser QC - Appellant
T Smith - Respondent Crown
Solicitors:
Armstrongs Solicitors - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2012/247452
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-06-05 00:00:00

Before:

Maiden SC DCJ

File Number(s):

2012/247452

Judgment

HOEBEN CJ at CL: The appellant was convicted by a jury of 11 on two counts of aggravated sexual assault (Crimes Act 1900, s 61J) and two counts of indecent assault of a child under 16 years (Crimes Act 1900, s 61M(2)).

The trial commenced before Judge Maiden SC in the Newcastle District Court on 27 May 2013. His Honour summed up on 3 June 2013 and the jury returned its verdicts of guilty to counts 1, 3, 5 and 6 on the indictment on 5 June 2013. Counts 2 and 4 were alternative counts and no verdict was returned in respect of them.

The appellant was sentenced on 3 September 2013 to an overall sentence of 3 years with a non-parole period of 21 months. There is no application for leave to appeal against sentence. The appellant was granted bail on 5 December 2013 by this Court to pursue his appeal against conviction.

The counts on the indictment in respect of which the appellant was convicted were:

Count 1 - Between 11 April 2011 and 14 April 2011 at Fishing Point in the State of NSW GL did have sexual intercourse with JKB without her consent, knowing…

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 GL v Regina

Details

AGLC: GL v Regina [2014] NSWCCA 68
Case: [2014] NSWCCA 68
Decision Date: 09 May 2014

CaseChat Overview and Summary

The appellant, GL, was convicted on two counts of aggravated sexual assault and two counts of indecent assault of a child under 16 years. The appeal was heard by the High Court of Australia, which was tasked with determining whether the summing up by the trial judge was deficient and if the trial judge misdirected the jury. The appellant contended that the summing up by the trial judge was inadequate, and that the judge misdirected the jury by not emphasising the need for unanimity among the jurors in relation to the evidence of the child victim.

The legal issues the court had to address were whether the trial judge's summing up was deficient and whether there was a misdirection of the jury. The court had to consider whether the trial judge failed to properly emphasise the need for unanimity among the jurors regarding the evidence of the child victim, and if this omission amounted to a misdirection. The appellant argued that the trial judge's summing up did not sufficiently stress the importance of unanimous agreement among the jurors in relation to the child's evidence, which was a fundamental requirement for the jury to reach a verdict.

The court found that the trial judge's summing up did not contain any deficiency and there was no misdirection of the jury. The court held that the trial judge had adequately addressed the requirement for unanimity among the jurors, and that the summing up was in line with the principles established in previous cases. The court emphasised that the trial judge had clearly instructed the jury on the need for unanimous agreement, and that there was no error in the summing up that could have led to a miscarriage of justice. The appeal was therefore dismissed.

The High Court upheld the conviction and sentence of the appellant. The court found that the trial judge had properly conducted the summing up and that there was no misdirection of the jury. The appeal was dismissed, and the conviction and sentence were affirmed.

Orders