R v AB - [2001] NSWCCA 496

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v AB [2001] NSWCCA 496

FILE NUMBER(S):
60313/00

HEARING DATE(S): 15 November 2001

JUDGMENT DATE: 15/11/2001

PARTIES:
Regina

JUDGMENT OF: Spigelman CJ Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0870

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
Mr J S Stratton for the Appellant
Ms E A Wilkins for the Crown

SOLICITORS:
D J Humphreys for the Appellant
S E O'Connor for the Crown

CATCHWORDS:
Appeal against conviction
tendency evidence
requirement to give notice
Reg 6, Evidence Regulations 1995
nature of requirement
whether reference to extrinsic documents permissible

LEGISLATION CITED:
Evidence Act 1995
Evidence Regulations 1995

DECISION:
Leave to appeal against sentence is granted and both the conviction appeal and sentence appeal are dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60313/00
SPIGELMAN CJ
SULLY J
ADAMS J

THURSDAY, 15 NOVEMBER 2001

AB v REGINA (NSW)

JUDGMENT

SPIGELMAN CJ: I agree.
SULLY J: I too agree.
SPIGELMAN CJ: The orders of the Court are leave to appeal against sentence is granted and both the conviction appeal and sentence appeal are dismissed.
ADAMS J: The appellant was convicted on 11 April 2000 of six charges of homosexual intercourse with a child between the ages of 10 and 18 years. On 19 May 2000 the learned trial judge. Judge Gibson QC DCJ sentenced the appellant. Issues are raised concerning the forms of these sentences which I will deal with later in this judgment.
Before coming to the grounds of appeal, it is desirable briefly to set out the circumstances of the case. The complainant was born on 20 March 1975 and was distantly related to the appellant who came to live with his family in 1985. The appellant and the complainant slept in the complainant's bedroom for some two years and later the appellant frequently met with the complainant in various places. There were two beds in the bedroom. The Crown case was that from the time he was 10 years old, the complainant was the subject of anal intercourse by the appellant and that on occasions their roles were reversed.
Specific offences were, as they had to be, specified in the six counts on the indictment. However, the Crown sought to prove that those six counts were but examples of continuing acts of inappropriate sexual behaviour involving anal intercourse which had occurred over the period from when the complainant was 10 years old to when he was 16 years of age. The evidence of the other offences was admitted under the well-known rules relating to what has come to be called relationship evidence which has been the subject of many decisions in this Court. For convenience I refer to the discussion in AN (2000) 117 A Crim R at 176. I do not propose further to dilate upon this aspect of the case except to say that that evidence was clearly admissible in the present case to provide…

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 R v AB

Details

AGLC: R v AB [2001] NSWCCA 496
Case: [2001] NSWCCA 496
Decision Date: 15 November 2001

CaseChat Overview and Summary

In the case of R v AB, the defendant appealed against his conviction for an offence under the Crimes Act 1900, following a trial in the Supreme Court of New South Wales. The central issue in the appeal was the admissibility of certain evidence presented by the prosecution, specifically whether the trial judge had correctly applied the requirement to provide notice of the intention to adduce such evidence, as stipulated under Regulation 6 of the Evidence Regulations 1995. The nature of the requirement to give notice and the admissibility of referencing extrinsic documents were key legal questions before the court.

The appeal raised questions about the interpretation and application of Regulation 6, particularly whether the requirement to give notice of the intention to adduce evidence of a person's tendency to commit an offence of a particular kind was mandatory. The court was asked to determine whether the failure to provide adequate notice rendered the evidence inadmissible. Additionally, the court examined whether the trial judge was correct in allowing reference to extrinsic documents to supplement the notice provided. The appellant argued that the notice given was insufficient, while the prosecution contended that the notice was adequate and the reference to extrinsic documents was permissible.

The court held that the requirement to give notice under Regulation 6 was indeed mandatory and that failure to comply with this requirement could result in the exclusion of the evidence. The court further found that the reference to extrinsic documents could supplement the notice provided, as long as the documents were made available to the defence in a timely manner. The court concluded that the trial judge had not erred in admitting the evidence in question, as the notice provided, when considered alongside the extrinsic documents, was sufficient to meet the statutory requirement. Consequently, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal. However, the court's decision reinforced the importance of strict compliance with the notice requirements under the Evidence Regulations 1995.

Orders