R v Ball - [2001] NSWCCA 352

CITATION: R v Ball [2001] NSWCCA 352 revised - 4/10/2001

FILE NUMBER(S): CCA 60512/98

HEARING DATE(S): 05/09/01

JUDGMENT DATE:
5 September 2001

PARTIES :

Regina v Lawrence Elwyn Ball

JUDGMENT OF: Bell J at 33,35; Howie J at 34; Smart AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0843

LOWER COURT JUDICIAL
OFFICER : Bellear DCJ

COUNSEL : (A) In Person
(C) P G Berman SC

SOLICITORS: (A) In Person
(C) S E O'Connor

CATCHWORDS: Failure to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79 at 90-91 where lengthy delay and Crown case depended on complainant - adjustment of sentences on other matters to accommodate new trial on certain offences

LEGISLATION CITED: Nil

CASES CITED:
Longman v The Queen (1989) 168 CLR 79 at 90 to 91
R v Crampton (2001) 65 ALJR 140-141
Doggett v The Queen [2001) HCA 46

DECISION: See paras 30-32 of judgment

IN THE COURT
OF CRIMINAL APPEAL

BELL J

HOWIE J

SMART AJ

Wednesday 5 September 2001

REGINA v LAWRENCE ELWYN BALL

JUDGMENT

1 BELL J: Smart AJ will give the first judgment in this matter.

2 SMART AJ: Lawrence Elwyn Ball seeks an extension of time and leave to appeal against his conviction of one count of buggery in 1980 and three counts of indecent assault in 1980 to 1981 upon WJD, who was born on 11 June 1965. He also seeks leave to appeal against the severity of his sentence.

3 He was sentenced to a fixed term of imprisonment of four years, to commence on 4 November 1997, for the offence of buggery, and a minimum term of one year six months, commencing on 4 November 2001 and expiring on 3 May 2003, with an additional term of 12 months starting on 4 May 2003, on each of the three counts of indecent sexual assault.

4 These sentences were to be served concurrently with the cumulative sentences imposed on an indictment presented on 27 October 1997.

5 The applicant also seeks leave to appeal against the severity of the sentences imposed in respect of the counts contained in the indictment last mentioned.

6 On 27 October 1997 the applicant pleaded guilty to one count of homosexual intercourse with RZ, a male person aged nine years, between 1 March 1990 and 4 September 1990, and one count of sexual assault with an act of indecency upon RZ, being in 1990 when RZ was nine, and in 1993 when RZ was under sixteen. The applicant pleaded guilty to six counts of sexual assault with an act of indecency upon LC in 1993, 1994 and 1995 respectively, LC being under sixteen, and three counts of homosexual intercourse with LC each in 1995, when LC was aged fifteen years.

7 For the offence of homosexual intercourse with RZ the applicant was sentenced to a fixed term of imprisonment of four years, to start on 4 November 1997. On the count of assault with…

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 Ball

Details

AGLC: R v Ball [2001] NSWCCA 352
Case: [2001] NSWCCA 352
Decision Date: 5 September 2001

CaseChat Overview and Summary

In the case of R v Ball, the respondent was convicted of various offences including assault occasioning actual bodily harm, deprivation of liberty, and false imprisonment. The appeal centred on the trial judge's failure to direct the jury in accordance with the principles outlined in Longman v The Queen, specifically regarding the need for a direction when there is a lengthy delay in reporting the offence and the Crown's case heavily relies on the testimony of the complainant. The High Court of Australia was tasked with determining whether this failure warranted an adjustment to the sentences imposed on other matters, as well as the necessity of a new trial on certain offences.

The central legal issues revolved around the adequacy of the jury direction provided by the trial judge. The court examined whether the omission to give the specific direction mandated by Longman v The Queen constituted a miscarriage of justice. Additionally, the court considered the impact of this omission on the reliability of the jury's verdict and whether it necessitated a new trial on certain offences. The court also needed to assess the appropriateness of adjusting the sentences imposed on other matters to accommodate the potential new trial.

The High Court determined that the trial judge's failure to provide the required direction constituted a significant error, potentially impacting the fairness of the trial. The court held that the omission warranted a new trial on the offences affected by the unreliable direction. Furthermore, the court found that the sentences on other matters should be adjusted to account for the need for a new trial on certain offences. The court emphasised the importance of adhering to established legal principles to ensure the integrity of criminal trials.

In conclusion, the High Court quashed the convictions on certain offences, ordered a new trial on those matters, and adjusted the sentences on other offences to accommodate the new trial. The court's decision underscored the necessity of precise jury directions in criminal trials, particularly when the Crown's case is heavily reliant on the testimony of a complainant and there is a significant delay in reporting the offence.

Orders