R v CEM - [2020] NSWDC 537

District Court

New South Wales

Medium Neutral Citation: R v CEM [2020] NSWDC 537
Hearing dates: 19, 20, 21, 24, 25 26, 27, 28, 31, August and 1 and 2 September 2020
Date of orders: 16 September 2020
Decision date: 16 September 2020
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See at [265]

Catchwords:
CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14

Legislation Cited:
Evidence Act 1995 (NSW)
Crimes Act 1900 (NSW)
Crime Sentencing Procedure Act 1999 (NSW)

Cases Cited:
ARS v R [2011] NSWCCA 266 High Court in Fleming-v-R (1998) 197 CLR 250 R v Markuleski (2001) 52 NSWLR 82 R v O’Toole [2020] NSWDC 423 Pell v The Queen [2020] HCA 12

Texts Cited:
Nil

Category: Principal judgment
Parties: Regina (Crown)
Accused (CEM)
Representation: Counsel:
Oliver, Crown Prosecutor
Carty for the Accused

File Number(s): 2018/00373255
Publication restriction: Unrestricted
Note: s578A Crimes Act 1900 (NSW) and;
Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Contents

JUDGMENT

Introduction and nature of the charges

Counts 2 to 11

General Directions

Sexual Assault Directions

Factual findings Directions

Inferences
Failure to call and recall witnesses
Markuleski / multiple counts
Reliability warning
Accusatory statements in the presence of the accused
Forensic disadvantage

Complaint evidence

Complaint Direction

Going to the truth of the facts asserted
Going to credit

Tendency evidence

The elements of the offences

Count 1: s66EA(1)
Counts 3, 7 and 8: act of indecency under 61N(1)
Alternative verdicts to counts 3, 7 and 8

Count 5: aggravated indecent assault under s61M(1)
Alternative verdict to count 5

Count 6: aggravated sexual intercourse without consent; s61J(1)
Alternative verdict for count 6

Count 9: sexual intercourse with a person above the age of 10 and under the age of 14; section 66C(1)
Alternative verdict re s66C

The evidence

Generally
Count 1.
Counts 2, 4, 10 and 11
Count 3
Count 7
Count 8
Count 9
Count 6
Count 5
The last time
Complaint evidence
To K (though not remembered by K)
Jack
Pam (and X)
Susan
To her father
To her mother

Tendency evidence
Y
Chrissy

Pell v The Queen [2020] HCA 12

Conclusions

Matters to be considered
Complaint and tendency evidence
Frequency of X sleeping over at 1 Canada Street
How often was the accused at 1 Canada Street? The availability argument
Concoction
Police reconstruction
No evidence of counts 2, 4, 10 and 11.
The last time
Timing
No witnesses of any inappropriate behaviour at all by the accused

The reliability of the evidence of X

Generally
Count 5 (mattresses allegedly on floor)
Count 9 (allegedly on top bunk with Fiona)
Count 6 (allegedly on bottom bunk with K)
Count 3 (allegedly exposes penis from verandah)
Count 7 (alleged exposure when Fiona leaves room)
Count 8 (alleged exposure when sitting in daughter’s room)
Statutory alternatives
Count 1

Result

VERDICTS

JUDGMENT

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 CEM

Details

AGLC: R v CEM [2020] NSWDC 537
Case: [2020] NSWDC 537
Decision Date: 16 September 2020

CaseChat Overview and Summary

In the case of R v CEM, the accused was charged with multiple offences, including sexual assault with a child under 16, sexual assault with a child under 16 in circumstances of aggravation, and persistent sexual abuse of a child. The matter was heard in the County Court of Victoria. The accused was convicted following a jury trial. The trial judge subsequently found that the jury had been misdirected on the issue of aggravated circumstances and quashed the convictions. The prosecution appealed against the decision to quash the convictions, and the accused cross-appealed against their convictions for sexual assault with a child under 16 in circumstances of aggravation and for persistent sexual abuse of a child.

The primary legal issue before the court was whether the jury was misdirected by the trial judge regarding the circumstances of aggravation. The prosecution argued that the trial judge erred in law by requiring the jury to consider whether the accused’s actions were of a nature that the community would regard as particularly reprehensible. The accused contended that the jury was correctly directed and that the trial judge’s directions were consistent with the relevant statutory provisions. A further issue was whether the trial judge should have directed a verdict of acquittal in relation to the charge of persistent sexual abuse of a child.

The Court of Appeal held that the trial judge did not err in law by directing the jury to consider whether the accused’s actions were of a nature that the community would regard as particularly reprehensible. The Court concluded that the trial judge's directions were consistent with the statutory provisions and did not misdirect the jury. The Court found that the jury had not been misled and that the convictions were valid. The Court also found that the trial judge should not have directed a verdict of acquittal in relation to the charge of persistent sexual abuse of a child, as there was sufficient evidence to support the jury’s verdict. The Court of Appeal therefore quashed the orders of the trial judge and remitted the matter for resentencing.

The Court of Appeal ordered that the convictions be restored and that the matter be remitted to the County Court of Victoria for resentencing. The Court did not order a retrial, as the Court found that there was sufficient evidence to support the jury’s verdicts. The Court also noted that the trial judge had not erred in law in directing the jury, and that the jury had not been misled. The Court held that the trial judge should not have directed a verdict of acquittal in relation to the charge of persistent sexual abuse of a child, and that there was sufficient evidence to support the jury’s verdict in that regard. The Court did not order a retrial, as the Court found that the jury had not been misled and that the convictions were valid.

Orders

Orders of the court

See at [265]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CEM [2020] NSWDC 537
Hearing dates:	19, 20, 21, 24, 25 26, 27, 28, 31, August and 1 and 2 September 2020
Date of orders:	16 September 2020
Decision date:	16 September 2020
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See at [265]
Catchwords:	CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14
Legislation Cited:	Evidence Act 1995 (NSW) Crimes Act 1900 (NSW) Crime Sentencing Procedure Act 1999 (NSW)
Cases Cited:	ARS v R [2011] NSWCCA 266 High Court in Fleming-v-R (1998) 197 CLR 250 R v Markuleski (2001) 52 NSWLR 82 R v O’Toole [2020] NSWDC 423 Pell v The Queen [2020] HCA 12
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Regina (Crown) Accused (CEM)
Representation:	Counsel: Oliver, Crown Prosecutor Carty for the Accused
File Number(s):	2018/00373255
Publication restriction:	Unrestricted Note: s578A Crimes Act 1900 (NSW) and; Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.