Gordon-King v The Queen - [2008] NSWCCA 335

Reported Decision: 192 A Crim R 448

New South Wales

Court of Criminal Appeal

CITATION: Gordon-King v R [2008] NSWCCA 335

HEARING DATE(S): 3 December 2008

JUDGMENT DATE:
22 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 30; Howie J at 31

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - improper admission or rejection of evidence - aggravated indecent assault and aggravated sexual assault - evidence of complaint - where maker available - whether asserted fact fresh in the memory of the person who made the representation - whether evidence of complaint wrongly admitted - whether admission of evidence unfair - whether evidence admissible to re-establish complainant's credit - compelling Crown case

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
Langbein v R [2008] NSWCCA 38
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Skipworth v R [2006] NSWCCA 37
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

PARTIES: David Gordon-King (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/4816

COUNSEL: M Dennis (Appellant)
P G Ingram (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0009

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 6 September 2007

2007/4816

McCLELLAN CJ at Cl
GROVE J
HOWIE J
MONDAY, 22 DECEMBER 2008

GORDON-KING, David v R

Judgment

NON-PUBLICATION ORDER RE NAME OF COMPLAINANT

1 McCLELLAN CJ at CL: The appellant was convicted of two counts in an indictment as follows:

Count 1: that on or about 2 April 2006 at Kandos in the State of New South Wales did assault [CW] and immediately at the time of that assault committed an act of indecency on [CW], she being then under the age of 16 years, namely 15 years old.

This count alleged a contravention of s 61M(1) of the Crimes Act 1900 and carries a maximum penalty of imprisonment for a term of 7 years. A standard non-parole period of 5 years applies to this offence.

Count 2: that on or about 2 April 2006 at Kandos in the State of New South Wales did have sexual intercourse with [CW], without the consent of [CW], knowing that she was not consenting, she being then under the age of 16 years, namely 15 years.

Crimes Act

2 The appellant appeals his conviction. He initially raised four grounds of appeal but two were abandoned. In the grounds of appeal that were pursued the appellant alleged that the evidence of DF and…

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 Gordon-King v The Queen

Details

AGLC: Gordon-King v The Queen [2008] NSWCCA 335
Case: [2008] NSWCCA 335
Decision Date: 22 December 2008

CaseChat Overview and Summary

The appeal before the court involved Gordon-King, who was convicted of aggravated indecent assault and aggravated sexual assault, and the respondent, the Crown. Gordon-King sought a new trial on grounds including the improper admission of evidence. Specifically, the issue was whether the trial judge should have admitted evidence of a complaint made by the complainant to a third party, when the complainant was available to testify. The crux of the appeal was whether the evidence was wrongly admitted, whether its admission was unfair, and whether it was admissible to re-establish the complainant's credit, in light of the compelling nature of the Crown's case.

The court examined whether the trial judge erred in admitting the evidence of the complaint to the third party. The complainant's availability to testify was a significant factor in the court's analysis. The court held that the judge did not err in admitting the evidence as the complainant's memory of the complaint could be considered fresh. Furthermore, the court found that the admission of the evidence was not unfair and was admissible to rebut any suggestion that the complainant had fabricated the allegations. The compelling nature of the Crown's case, supported by other evidence, reinforced the admissibility of the complaint evidence.

The court upheld the conviction, finding that the trial judge did not err in admitting the evidence of the complaint to the third party. The court found that the complainant's memory of the complaint was fresh, the admission of the evidence was not unfair, and it was admissible to rebut any suggestion of fabrication. Given the strength of the Crown's case, the admission of the complaint evidence did not prejudice the appellant. Therefore, the appeal against conviction was dismissed.

No orders regarding a new trial were made as the appeal against conviction was dismissed. The conviction stood affirmed.

Orders