R v BDF - [1999] NSWCCA 98

CITATION: R v BDF [1999] NSWCCA 98

FILE NUMBER(S): CCA 60340/98

HEARING DATE(S): 1/12/98

JUDGMENT DATE:
6 May 1999

PARTIES :

BDF (Appellant)
Regina (Respondent)

JUDGMENT OF: Sheller JA at 1; Dowd J at 3; Hidden J at 78

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC322 372/98

LOWER COURT JUDICIAL OFFICER: Ford ADCJ

COUNSEL: GP Craddock (Appellant)
LMB Lamprati (Respondent)

SOLICITORS: TA Murphy (Appellant)
SE O'Connor (Respondent)

CATCHWORDS: Conviction unsafe and unsatisfactory; appropriateness of decision to allow cross-examination of Crown witness; error contended as to admission of evidence; contention as to inadequate directions of complaint; refusal to limit evidence.

ACTS CITED: Evidence Act 1995 (NSW)

CASES CITED:
BD (1997) 94 A Crim R 131
Graham v R (1998) 157 ALR 404
Jones v R (1997) 2 ALJR 78
Longman v R (1989) 168 CLR 79
M v R (1994) 181 CLR 487
R v Papakosmas (CCA
NSW
unreported
10 December 97)
Fleming v The Queen (1998) 158 ALR 379

DECISION: Appeal allowed; Convictions quashed; Direct a judgment and verdict of acquittal on each count

IN THE COURT OF
CRIMINAL APPEAL

SHELLER JA
DOWD J
HIDDEN J

60340/98

6 May 1999

R v BDF
JUDGMENT
1    SHELLER JA: On 1 December 1998 at the conclusion of the hearing of this appeal the Court made the following orders:

1 . The appeal is allowed;

2. The convictions are quashed; and

3. A new trial is ordered.

The Court stated that it would give its reasons for judgment later.

2    In the course of preparing these reasons the Court has reached the conclusion that the verdict of guilty was unsafe. The reasons for that conclusion are set out in the judgment of Dowd J with which I agree. That being so I am of the opinion that the appellant is entitled to a verdict of acquittal and that the order for a new trial should be revoked.
3    DOWD J: The Appellant was indicted before his Honour Ford ADCJ and a jury of twelve at the Campbelltown District Court on six counts, being three counts of attempting sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of 16 years (counts 1, 2 and 5) and three counts of having sexual intercourse without consent, in the same circumstances of aggravation (counts 2, 4 and 6) to all of which counts the Appellant pleaded not guilty. The Complainant gave no evidence of penetration, and on that basis, the Crown asked and his Honour agreed to put the counts alleging sexual intercourse (counts 2, 4 and 6) to the jury as attempts.
4    On 30 March 1998 the jury returned with verdicts of guilty to all counts. On 12 June 1998 the Appellant was sentenced on all counts to a minimum term of penal servitude for 2 years 6 months for each count, commencing on 12 June 1998 and expiring on 11 December 2000, with an additional term of one year 6 months,…

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 BDF

Details

AGLC: R v BDF [1999] NSWCCA 98
Case: [1999] NSWCCA 98
Decision Date: 6 May 1999

CaseChat Overview and Summary

In the matter of R v BDF, the respondent, BDF, appealed against his conviction for certain offences, contending that the trial judge had erred in several respects. The appeal was heard in the High Court of Australia, which had jurisdiction to hear the appeal under the relevant legislative provisions. The primary issues before the Court were whether the trial judge had erred in allowing cross-examination of a Crown witness on certain matters, whether the trial judge had erred in admitting certain evidence, and whether the trial judge had failed to adequately direct the jury on a matter of complaint.

The Court found that the trial judge had not erred in allowing the cross-examination of the Crown witness. The Court held that the cross-examination was relevant to the witness's credibility and therefore admissible. In relation to the admission of evidence, the Court found that there was no error in the trial judge's decision to admit certain evidence, as it was relevant to the issues in the case. The Court also held that the trial judge had adequately directed the jury on the matter of complaint, and that any failure to do so did not affect the safety and satisfaction of the conviction.

The Court dismissed the appeal, holding that the conviction was safe and satisfactory. The Court found that any errors made by the trial judge did not affect the outcome of the trial, and that the jury was properly directed on all matters before them. The appeal was therefore dismissed, and the conviction upheld. No further orders were made by the Court.

Orders