GP v R

Case [2016] NSWCCA 150 3 August 2016

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: GP v R [2016] NSWCCA 150
Hearing dates: 1 July 2016
Decision date: 03 August 2016
Before: Payne JA at [1];
McCallum J at [75];
Wilson J at [76].
Decision:
(1)   Ground 1 is dismissed;
(2)   Leave to appeal refused on ground 2;
(3)   Leave to appeal granted on grounds 3 – 5;
(4)   Appeal dismissed on grounds 3 – 5.

Catchwords: CRIMINAL LAW – appeal – conviction – whether evidence should have been admissible under an exception to Criminal Procedure Act 1986 (NSW) s 293 – meaning of “injury” which is “attributable to the sexual intercourse alleged to have been had by the accused person” – CRIMINAL LAW – appeal – sentencing – whether primary judge fell into Muldrock error – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B
Crimes Act 1900 (NSW) ss 66A, 409B, 578A
Criminal Appeal Act 1912 (NSW) s 5
Criminal Procedure Act 1986 (NSW) ss 105, 293
Evidence Act 1995 (NSW) s 137
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Carr v The State of Western Australia [2007] HCA 47; 232 CLR 138
HG v The Queen [1999] HCA 2; 197 CLR 414
IMM v The Queen [2016] HCA 14; 90 ALJR 529
JAD v R [2012] NSWCCA 73
KG v R [2012] NSWCCA 10
Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Melbom v R [2013] NSWCCA 210
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v BA [2014] NSWCCA 148
R v Dimian (1995) 83 A Crim R 358
R v Henning & Ors (Court of Criminal Appeal (NSW), 11 May 1990, unrep)
R v McGarvey (1987) 10 NSWLR 632
R v Morgan (1993) 30 NSWLR 543
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited: NSW Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW) (Report 87, November 1998)
Category: Principal judgment
Parties: GP (appellant)
Regina (respondent)
Representation:
Counsel:
G Wendler (appellant)
S Dowling SC with L Coleman (respondent)
Solicitors:
Van Houten Law (appellant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2013/281256
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any information which might identify the complainant in this matter
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 February 2015 and
5 June 2015

Before:

English DCJ

File Number(s):

2013/00281256

Judgment

PAYNE JA: On 20 February 2015, following a nine day trial in the District Court before English DCJ, the appellant was found guilty by a jury of two counts of sexual intercourse with a child under the age of 10 contrary to s 66A of the Crimes Act 1900 (NSW).
On 5 June 2015, the appellant was sentenced to…

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 GP v R

Details

AGLC: GP v The Queen [2016] NSWCCA 150
Case: [2016] NSWCCA 150
Decision Date: 03 August 2016

CaseChat Overview and Summary

In this case, the appellant, GP, appealed against both his conviction and his sentence. The conviction arose from an incident involving sexual intercourse with a complainant, which the appellant denied. The Crown sought to admit evidence of a prior sexual encounter between the same parties, arguing it was relevant to the identity of the complainant and the nature of the incident. The primary judge ruled the evidence inadmissible under the exception in s 293 of the Criminal Procedure Act 1986 (NSW). The appellant argued that the evidence should have been admitted as it related to an injury sustained during the alleged sexual intercourse, and therefore, should be considered under the statutory exception.

The central legal issues were whether the evidence of the prior sexual encounter was admissible under the exception to s 293 and whether the sentence imposed was manifestly excessive or otherwise an abuse of judicial discretion. Regarding the admissibility of the prior encounter, the court considered the meaning of “injury” within the context of the exception. The court held that the injury in question was not attributable to the alleged sexual intercourse, and therefore, the evidence was properly excluded. On the sentencing issue, the court found no error in the primary judge’s approach and determined the sentence was not manifestly excessive.

The court held that the primary judge correctly interpreted the exception in s 293 and rightly excluded the evidence of the prior sexual encounter. The court also found that the sentence imposed was appropriate and did not constitute an abuse of discretion. The court was satisfied that the primary judge had considered the relevant factors and appropriately weighed the circumstances of the offence and the appellant’s background. Accordingly, the appeal against both conviction and sentence was dismissed.

Orders