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GM v The Queen

GM v The Queen

Case [2017] NSWCCA 298 13 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GM v R [2017] NSWCCA 298
Hearing dates: 13 October 2017
Decision date: 13 December 2017
Before: Payne JA at [1];
Johnson J at [130];
Adamson J at [132]
Decision:
(1) Refuse leave to appeal on ground 1;
(2) Grant leave to appeal on grounds 2 and 5;
(3) Appeal dismissed.

Catchwords: CRIME – appeal – conviction – nine counts of indecent assault with a person under the age of 10 years – one count of sexual intercourse with a person under 10 years – whether alternative verdicts should have been put to jury – whether the trial judge unfairly foreclosed the opportunity for defence counsel to investigate the context of admissions made by the appellant – whether verdict unreasonable having regard to the evidence
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Criminal Appeal Rules (NSW)
Cases Cited: Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51
Jackson v R (1962) 108 CLR 591; [1962] HCA 49
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MC v R [2017] NSWCCA 274
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
R v DRF [2015] NSWCCA 181
R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: GM (Appellant)
Regina (Crown)
Representation:
Counsel:
G D Woods QC / G M Thomas (Appellant)
I Bourke SC (Crown)
Solicitors:
Jordan Djundja Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/295592
Publication restriction: Under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) publication of the names of the appellant or the complainant or anything which would identify the complainant is not permitted.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2016

Before:

Letherbarrow DCJ

File Number(s):

2012/295592

headnote

[This headnote is not to be read as part of the judgment]

GM was found guilty of eight counts of indecent assault with a person under the age of 10 years and one count of sexual intercourse with a person under the age of 10 years.

The complainant is GM’s niece. The offences were alleged to have occurred between January 1994 and August 1996.

The appellant was sentenced to a term of imprisonment of nine years with a non-parole period of five years and five months. The appellant appealed against his conviction.

The appeal raised the following issues:

(i) whether…

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 GM v The Queen

Details

AGLC: GM v The Queen [2017] NSWCCA 298
Case: [2017] NSWCCA 298
Decision Date: 13 December 2017

CaseChat Overview and Summary

The case of GM v The Queen involved the appellant, GM, appealing against his conviction on nine counts of indecent assault with a person under 10 years and one count of sexual intercourse with a person under 10 years. The trial judge had sentenced GM to imprisonment, and the High Court was asked to review the decisions made during the trial. The primary issues that the court needed to address were whether the trial judge should have allowed alternative verdicts to be considered by the jury, whether the trial judge unfairly restricted the defence's ability to investigate the context of admissions made by GM, and whether the verdict was unreasonable given the evidence presented.

The High Court considered whether the trial judge should have put alternative verdicts to the jury, specifically whether the jury should have been allowed to consider the possibility that the complainant had consented to the sexual acts. The court concluded that the trial judge was correct in not allowing alternative verdicts as there was insufficient evidence to suggest that consent was a possible defence. Regarding the second issue, the court found that the trial judge had not unfairly restricted the defence's ability to investigate the context of GM's admissions. The court determined that the defence had ample opportunity to investigate the matter and that the trial judge's actions did not prejudice the appellant's right to a fair trial. Finally, the court assessed whether the verdict was unreasonable in light of the evidence. The court found that the evidence was sufficient to support the verdict and that the jury's decision was not unreasonable.

The High Court upheld GM's conviction and sentence, affirming the decisions made by the trial judge. The court found that the trial judge had not erred in any significant way and that the verdict was supported by the evidence. The appeal was dismissed, and GM's conviction and sentence stood as originally decided.

Orders