R v ACK - [2000] NSWCCA 180

CITATION: R v ACK [2000] NSWCCA 180

FILE NUMBER(S): CCA 60191/98

HEARING DATE(S): 09/05/00

JUDGMENT DATE:
9 May 2000

PARTIES :

Regina v ACK

JUDGMENT OF: Spigelman CJ at 63 and 65; James J at 2; Ireland J at 64

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/2065

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : DR Drewett - Appellant
DC Frearson - Crown

SOLICITORS: Hancocks
SE O'Connor

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60191/98

SPIGELMAN CJ
JAMES J
IRELAND J

Tuesday 9 May 2000

REGINA v ACK
JUDGMENT

1   SPIGELMAN CJ: I invite James J to deliver the first judgment.
2   JAMES J: The appellant ACK has appealed against his conviction after a trial in the District Court before his Honour Judge O'Reilly and a jury on two counts of aggravated indecent assault allegedly committed in January 1993. The victim of both offences was the appellant's daughter, (who I will refer to as "the complainant" or "S").
3   S was born in February 1978 and was accordingly fourteen years old, nearly fifteen, at the time the alleged offences were committed. That the victim was under the age of sixteen years constituted the circumstances of aggravation relied on by the Crown on the two counts of aggravated indecent assault. The Crown could also have relied on the fact that the alleged victim was under the authority of the appellant as constituting circumstances of aggravation.
4   At the trial the appellant was also charged with having sexual intercourse with S without her consent at some time between 1 December 1992 and 4 January 1993, this being the first count in the indictment. However, the appellant was found not guilty on this charge.
5 Aggravated indecent assault is an offence under s 61M of the Crimes Act, for which the maximum penalty is imprisonment for seven years. Although his Honour's remarks on sentence are not entirely clear, his Honour would appear to have sentenced the appellant on each count to a sentence of imprisonment for three and a half years, consisting of a minimum term of six months commencing on 1 April 1998, the date of sentencing, and expiring on 30 September 1998, and an additional term of three years. In arriving at these sentences his Honour took into account that the appellant had served nineteen months of pre-sentence custody.
6   In the event of his appeal against conviction being unsuccessful, the appellant seeks leave to appeal against the sentences imposed by Judge O'Reilly.
7   The case has had a most unfortunate history. The appellant was committed for trial at the conclusion of committal proceedings in 1993. A first trial in August 1994 was aborted on the second day of the trial. At a trial held in September 1994 before his Honour Judge Nield and a jury the appellant was convicted on all charges, that is, the charge of sexual intercourse without consent and the two charges of aggravated indecent assault. However, an appeal…

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 ACK

Details

AGLC: R v ACK [2000] NSWCCA 180
Case: [2000] NSWCCA 180
Decision Date: 9 May 2000

CaseChat Overview and Summary

The appellant, ACK, appealed against his conviction on two counts of aggravated indecent assault in the District Court. The trial had a troubled history, with previous trials being aborted and an earlier appeal resulting in a new trial being ordered. The case relied almost entirely on the testimony of the complainant, the appellant's daughter, who alleged multiple instances of sexual abuse by the appellant. The appellant was acquitted on a charge of sexual intercourse without consent. The appeal against conviction focused on alleged inconsistencies in the complainant's evidence and between her evidence and previous statements, as well as between the verdicts on different counts. The Court of Criminal Appeal found that the jury was in the best position to assess the credibility of the complainant's evidence and explanations for any inconsistencies, and concluded that the jury's verdicts were not unreasonable. The appeal against conviction was dismissed, and leave to appeal against sentence was refused.

Orders