R v Bell

Case [2002] NSWCCA 2 1 February 2002

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CITATION: Regina v Bell [2002] NSWCCA 2 revised - 28/02/2002

FILE NUMBER(S): CCA 60557

HEARING DATE(S): 19 July 2001

JUDGMENT DATE:
1 February 2002

PARTIES :

Regina v Philip Harold Bell

JUDGMENT OF: Handley JA at 1; O'Keefe J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0548

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : (A) In Person
(C) R Hulme

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

CATCHWORDS: Multiple sexual offences - conviction after trial of 28 offences - plea of guilty to a further 16 offences with 31 other offences taken into account - notice of abandonment of appeal - refusal of leave to withdraw such notice - alleged fresh evidence but relevant facts known - no miscarriage of justice - admission of tendency and/or co-incidence evidence - no error in refusing separate trials - credibility of witnesses - alleged discrepancies and problems dating incidents which happened many years ago - adverse pre-trial publicity and publicity during trial - directions to jury to overcome publicity - verdicts reasonable and supported by evidence

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
R Cartwright (1989) 17 NSWLR 243
R v Jeffery NSWCCA unrep 16 December 1993
R v Brandy NSWCCA unrep 28 October 1996
R v Combe NSWCCA unrep 24 April 1997
R v Young [1999] NSWCCA 275
R v Lock (1997) 91 A Crim R 356
R v M J White [1999] NSWCCA 336
R v Smith [2000] NSWCCA 468
R v Giam (1994) 104 A Crim R 426
S v The Queen (1989) 168 CLR 266
Pfennig v The Queen (1995) 182 CLR 461
Hoch v The Queen (1988) 165 CLR 292
R v PH NSWCCA, unrep 4/3/94
R v Milat NSWCCA unrep 26/2/98
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
Gipp v The Queen (1998) 194 CLR 106
Fleming v The Queen (1998) 197 CLR 250
R v Bell NSWCCA unrep 8/10/98

DECISION: Leave to withdraw Notice of Abandonment of appeal against convictions refused. Leave to appeal against convictions out of time refused.

IN THE COURT OF
CRIMINAL APPEAL

HANDLEY JA

O'KEEFE J

SMART AJ

Friday, 1 February 2002

NON-PUBLICATION

REGINA V PHILIP HAROLD BELL

JUDGMENT

1 HANDLEY JA: I agree with Smart AJ.

2 O'KEEFE J: I have read the judgment of Smart AJ in draft. I agree with his conclusions and

with the orders proposed by him.

3 SMART AJ: The media is reminded of s.578 of the Crimes Act 1900 which provides that a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any other matter which is likely to lead to the identification of the complainant. These are prescribed sexual proceedings and there are some 18 complainants. At the hearing on 19 July 2001 an order was made prohibiting the publication of the names of two witnesses at the trial. The effect of…

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 Bell

Details

AGLC: R v Bell [2002] NSWCCA 2
Case: [2002] NSWCCA 2
Decision Date: 1 February 2002

CaseChat Overview and Summary

The defendant, Bell, was charged with 64 offences related to sexual abuse, which were alleged to have occurred over a period of 20 years. Bell was convicted after a trial of 28 of these offences, and pleaded guilty to a further 16 offences, with 31 other offences taken into account. The Court of Appeal heard an application by Bell to withdraw a notice of abandonment of appeal. The appeal was based on the claim of fresh evidence, which Bell argued would have made a difference to the outcome. However, the facts in question were already known to the parties at the time of trial, and it was found that there was no miscarriage of justice. The court also considered the admissibility of tendency and/or coincidence evidence, and found that the trial judge had not erred in his directions to the jury. The credibility of the witnesses was also considered, as well as the impact of pre-trial and trial publicity on the jury's verdict. It was held that the verdicts were reasonable and supported by the evidence.

The court examined the admissibility of evidence that was sought to be introduced as fresh evidence. It was found that the facts in question were already known to the parties at the time of trial, and therefore could not be considered fresh evidence. The court also considered the impact of adverse publicity on the jury's verdict. The trial judge had given directions to the jury to overcome the impact of the publicity, and it was found that the verdicts were reasonable and supported by the evidence. The court also considered the credibility of the witnesses, and found that there were no discrepancies or problems dating incidents that would have impacted the outcome of the trial. The court held that the trial judge had not erred in refusing separate trials, and that the verdicts were supported by the evidence.

Orders