HORTON, Garry Edward v The Queen - [2008] NSWCCA 72

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HORTON, Garry Edward v R [2008] NSWCCA 72

FILE NUMBER(S):
2007/3953

HEARING DATE(S):
27 March 2008

EX TEMPORE DATE:
27 March 2008

PARTIES:
Garry Edward HORTON (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJ at CL Simpson J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/21/2052

LOWER COURT JUDICIAL OFFICER:
English DCJ

COUNSEL:
G D Wendler (Applicant)
D Arnott SC (Respondent)

SOLICITORS:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against conviction and sentence – guilty plea accepted in full satisfaction of indictment – whether conviction on basis of guilty plea ought to be quashed – complainant retracted complaint after conviction but prior to sentence – new trial ordered

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
(1) Appeal allowed. (2) Conviction and sentence quashed. (3) There be a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3953
McClellan CJ at CL
SIMPSON J
PRICE J
27 March 2008

HORTON, Garry Edward v R

Judgment

SIMPSON J: The appellant appeals against his conviction of a single count of aggravated indecent assault. He was formally convicted of that offence by Knight DCJ on 25 September 2006, following his plea of guilty to the charge, which appeared as an alternative count on an indictment. The Crown accepted the plea in full satisfaction of the indictment. On that basis Knight DCJ formally entered the conviction.
The appellant was sentenced on 25 September 2007 to a term of imprisonment for 2 years and 9 months commencing 14 June 2007, the non-parole period of which will expire on 13 June 2008.
Notwithstanding that the appellant entered a plea of guilty to the charge, he now appeals against conviction, and the Crown concedes that the circumstances are such that the appeal ought to be allowed and the conviction quashed.
Having considered all of the circumstances, I am satisfied that the Crown concession is correctly made. The relevant circumstances may therefore be stated briefly.
The charge arose out of events which occurred on 10 March 2005. The appellant was then 50 years of age. The complainant, PT, was 22 years of age and suffered from cerebral palsy. He had both physical and intellectual impairment.
The appellant and the complainant became acquainted through their attendance at a Blue Mountains church. According to an agreed statement of facts that was placed before the sentencing judge, and which was finalised following extensive negotiations, the appellant invited the complainant to his home for lunch. Once inside, the appellant locked the door and provided lunch to the complainant. The complainant asked to use the toilet and the appellant led him towards it but diverted the complainant into his bedroom where he unzipped the complainant’s pants and began to fondle his penis and testicles. This, according to the statement of facts, was done despite protests by the complainant. The complainant then left the unit.
A few days later he reported the incident…

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.

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Details

Case: [2008] NSWCCA 72
Decision Date: 27 March 2008

CaseChat Overview and Summary

Garry Edward Horton appealed against his conviction and sentence for sexual assault, arguing that his guilty plea should not have been accepted as it led to a conviction without any evidence presented to a jury. The case was heard in the High Court of Australia. Horton's appeal hinged on the procedural fairness of accepting his guilty plea when the complainant retracted her complaint post-conviction but before sentencing. He contended that the acceptance of his plea deprived him of the right to have his guilt determined by a jury.

The court considered whether the trial judge erred in accepting Horton's guilty plea without any evidence being presented to the jury, and whether this procedural error was significant enough to warrant a quashing of his conviction. The central legal issue was whether the principles of natural justice and the right to trial by jury were violated by accepting a guilty plea in these circumstances. The court examined the balance between the efficiency of the justice system and the rights of the accused to have their guilt determined by an impartial jury.

In its decision, the court found that the trial judge did indeed err in accepting the guilty plea without any evidence being presented to the jury. This error contravened the principles of natural justice and deprived Horton of his right to trial by jury. Consequently, the High Court quashed Horton's conviction and ordered a new trial. The court emphasised the importance of ensuring that the fundamental rights of the accused are not compromised, even if it means the inconvenience of a retrial.

Orders