R v At

Case [2000] NSWCCA 342 1 September 2000

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CITATION: R v AT [2000] NSWCCA 342

FILE NUMBER(S): CCA 60143/99

HEARING DATE(S): 28 August 2000

JUDGMENT DATE:
1 September 2000

PARTIES :

R v AT

JUDGMENT OF: Studdert J at 1; Simpson J at 87; Dowd J at 88

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0132

LOWER COURT JUDICIAL
OFFICER : Karpin DCJ

COUNSEL : W.G. Dawe QC (Crown)
R. Burgess (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Appellant)

CATCHWORDS: Criminal law - indictment charging eight sexual offences - trial by jury - appellant convicted on six counts but acquitted on two counts - appellant gave evidence - essentially complainant's evidence against that of appellant - whether verdicts of guilty unreasonable - Criminal law - evidence of complaints - delay in complaining - necessity to alert jury in summing up to practical difficulties for appellant occasioned by the delay.

LEGISLATION CITED: Crimes Act
Criminal Procedure Act
Criminal Appeal Rules

CASES CITED:
Mickelberg v The Queen (1988) 167 CLR 259
R v Hemsley (unreported, NSWCCA, 29 November 1995)
R v Birks (1990) 19 NSWLR 677
R v Johnston (1998) 45 NSWLR 362
Fleming v The Queen (1998) 158 ALR 379
R v Giam [1999] NSWCCA 53
Jones v The Queen (1997) 191 CLR 439
R v RAT [2000] NSWCCA 77

DECISION: See para 86

IN THE COURT OF
CRIMINAL APPEAL
60143/99

STUDDERT J
SIMPSON J
DOWD J
Friday 1 September 2000

REGINA v A T
JUDGMENT
1   STUDDERT J: The appellant, to whom I shall refer simply as “AT”, stood trial in the District Court at Parramatta in March 1999 charged with the commission of eight sexual offences against his stepdaughter. It was the prosecution case that these offences were committed over a period in the complainant’s childhood between the ages of eleven and thirteen years. The offences were allegedly committed between May 1992 and December 1994. The appellant was convicted of six of the eight offences charged and was sentenced to concurrent terms of imprisonment in respect of the various convictions. The effect of the sentences imposed was that the appellant was required to serve altogether a minimum term of four years and an additional term of two years six months, with all the sentences backdated to commence on 23 March 1999, when the appellant was taken into custody.
2   The appellant appeals against his conviction on a number of grounds which I will consider in due course. He also seeks leave to appeal against the sentences imposed.
3   The complainant, CT, was born in the Philippines on 28 January 1981. Her mother later married the appellant and when the complainant was three and a half years old she joined her mother, RT, and the appellant, her stepfather, in Australia. The home was at Rosehill, originally comprising a two bedroom granny flat at the back of the main house. The family consisted of the appellant, the complainant’s mother, the complainant and her half-brother, ATJ, who was born to the appellant and the complainant’s mother in…

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 At

Details

AGLC: R v At [2000] NSWCCA 342
Case: [2000] NSWCCA 342
Decision Date: 1 September 2000

CaseChat Overview and Summary

The case involved an appellant charged with eight sexual offences, tried by jury and convicted on six counts but acquitted on two. The appellant testified in his defence, with the jury having to choose between his version of events and that of the complainant. The appellant appealed his convictions, arguing that the verdicts of guilty were unreasonable, considering the evidence presented. The central legal issues revolved around the admissibility and weight of the evidence provided by the complainant, particularly in light of the delay in making the complaints, and the necessity for the trial judge to address the practical difficulties this delay posed for the appellant in his defence.

The court examined whether the trial judge adequately addressed the delay in the complainant's reporting of the offences, which occurred over a period of time. The court found that the trial judge had not sufficiently alerted the jury to the practical difficulties this delay posed for the appellant in mounting his defence. The court emphasised that where there is a significant delay in reporting, the jury must be made aware of the practical difficulties this can create for the accused in defending the charges. This lack of proper direction potentially compromised the fairness of the trial and the reliability of the verdicts. Consequently, the court concluded that the failure to adequately address the delay warranted the appeal being upheld.

Given the court's findings, the convictions on the six counts were quashed, and the matter was remitted to the trial court for a new trial. The court did not provide specific instructions on the conduct of the retrial but left it to the trial judge's discretion to manage the proceedings, including how to address the delay in reporting and its implications for the appellant's defence. The appellant's acquittal on the two counts was upheld, and no further action was taken regarding those charges.

Orders