R v ATM

Case [2000] NSWCCA 475 24 November 2000

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CITATION: Regina v ATM [2000] NSWCCA 475 revised - 24/11/2000

FILE NUMBER(S): CCA 060184/00

HEARING DATE(S): 20 November 2000

JUDGMENT DATE:
24 November 2000

PARTIES :

Regina v ATM

JUDGMENT OF: Sully J at 1; Whealy J at 2; Howie J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/3116

LOWER COURT JUDICIAL
OFFICER : Mitchelmore ADCJ

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

SOLICITORS: Kremmer Townsend (Appellant)
S.E. O'Connor (Crown)

CATCHWORDS: Appeal after convictions - convictions unreasonable and unable to be supported - Summing up - directions and warnings on relationship evidence

LEGISLATION CITED: Evidence Act 1995 - ss 38, 97, 101

CASES CITED:
Jones v the Queen (1989) 166 CLR 409
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v Milat (SC(NSW) Hunt CJ at CL, unreported, 23/4/96)
R v Adam (1999) 47 NSWLR 267
R v A.N. [2000] NSWCCA 372
Gipp v The Queen (1998) 194 CLR 106
R v A.H. (1997) 42 NSWLR 702
R v Beserick (1993) 30 NSWLR 510
R v Fraser (NSW Court of Criminal Appeal, unreported, 10/8/98)
R v Greenham [1999] NSWCCA 8
BRS v The Queen (1997) 191 CLR 275
R v R.N.S. [1999] NSWCCA 122
R v Wickham (NSW Court of Criminal Appeal, unreported, 17/12/91)
R v Tripodina (1988) 35 A Crim R 183
R v Marsh [2000] NSWCCA 370

DECISION: Appeal allowed. Convictions quashed. Verdicts of acquittal entered on each count.

IN THE COURT OF
CRIMINAL APPEAL

060184/00
SULLY J

WHEALY J
HOWIE J

FRIDAY 24 November 2000

REGINA v A.T.M.

JUDGMENT

1    SULLY J: I agree with Howie J.
2    WHEALY J: I agree with the reasons of Howie J and the orders that he proposes.
3    HOWIE J: This is an appeal against conviction on two charges of child sexual assault after trial by jury in the District Court. There are two grounds of appeal. The first is that the verdicts are unreasonable and unable to be supported. The second is that the trial judge failed adequately to direct the jury with regard to relationship evidence.
4    Following his conviction, the appellant was sentenced in respect of each count on the indictment to a minimum term of 2 years imprisonment and an additional term of 2 years imprisonment. There is no appeal against sentence.
5 The appellant was arraigned on an indictment containing two counts of having sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act. The first charge alleged an offence committed between 1 February 1989 and 30 July 1989 at Cabramatta. The second charge alleged an offence committed between 24 February 1990 and 15 December 1990 at Carlton.
6    The complainant in respect of each charge was the same. She was the stepdaughter of the appellant. She was born on 10 October 1982 in The Philippines and was aged 17 years at the time of the trial. Her natural father died on 10…

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 ATM

Details

AGLC: R v ATM [2000] NSWCCA 475
Case: [2000] NSWCCA 475
Decision Date: 24 November 2000

CaseChat Overview and Summary

The case of R v ATM involved the appellant, ATM, who was convicted of multiple counts of sexual offences. ATM appealed against his convictions, arguing that the summing up by the trial judge was inadequate and that the convictions were unreasonable and unable to be supported by the evidence. The appeal was heard by the Court of Appeal, which was tasked with determining whether the trial judge's summing up was appropriate and whether the convictions were supported by the evidence.

The primary legal issues before the court were whether the trial judge erred in the summing up by not sufficiently directing the jury on the use of relationship evidence, and whether the convictions were unreasonable and unable to be supported by the evidence. The court considered whether the trial judge's summing up was adequate in directing the jury on the use of relationship evidence and whether the convictions were supported by the evidence.

The court held that the trial judge had not adequately directed the jury on the use of relationship evidence. The summing up did not sufficiently warn the jury that relationship evidence could only be used for the limited purposes permitted by the Evidence Act. The court further held that the trial judge's summing up was insufficient in directing the jury on the use of relationship evidence and that the convictions were unreasonable and unable to be supported by the evidence. The court quashed the convictions and ordered a retrial.

The Court of Appeal quashed the convictions and ordered a retrial. The court found that the trial judge's summing up was inadequate in directing the jury on the use of relationship evidence and that the convictions were unreasonable and unable to be supported by the evidence. The court held that the trial judge's summing up did not sufficiently warn the jury that relationship evidence could only be used for the limited purposes permitted by the Evidence Act. The court quashed the convictions and ordered a retrial to ensure that the appellant received a fair trial.

Orders