R v Davis - [2001] NSWCCA 70

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v MFA [2001] NSWCCA 71

FILE NUMBER(S):
60331/00

HEARING DATE(S): 26 February 2001

JUDGMENT DATE: 21/03/2001

PARTIES:
Regina v MFA

JUDGMENT OF: Heydon JA Barr J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/3096

LOWER COURT JUDICIAL OFFICER: Ford DCJ

COUNSEL:
(A) P J D Hamill
(R) G E Smith

SOLICITORS:
(A) D J Humphreys
(R) S E O'Connor

CATCHWORDS:
Verdicts not unreasonable and able to be supported - acquittals on 7 counts and convictions on 2 counts - supporting evidence on latter 2 counts but not on other counts - sentence on indecent assault excessive.

LEGISLATION CITED:
Nil

DECISION:
Appeals against conviction dismissed. Leave to appeal against sentence granted
Appeal against sentence on count 8 (homosexual intercourse) dismissed
Appeal against sentence on count 7 (indecent assault) allowed; sentence quashed; in lieu thereof the appellant is sentenced to a fixed term of imprisonment of 15 months commencing on 22 March 2000
Appellant to be returned to gaol (having been released on bail on 19 December 2000 pending his appeal) to serve the balance of his term of imprisonment.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60331/00

HEYDON, JA
BARR J
SMART AJ
Wednesday, 21 March 2001
REGINA            v           MFA
JUDGMENT
1      HEYDON JA: I agree with the reasons for judgment of Mr Acting Justice Smart.
2      BARR J:   I also agree with the reasons for judgment of Mr Acting Justice Smart
3      SMART AJ:   MFA appeals against his conviction on counts 7 and 8 of an indictment containing 9 counts. Count 7 alleged that between 31 March 1997 and 30 November 1997 he assaulted LB and committed an act of indecency upon him, he then being 15 years of age. Count 8 alleged that in the same period he had homosexual intercourse with LB, a male aged 15 years.
4      MFA was acquitted of indecent assault of LB between 15 December 1993 and 13 December 1994, LB being aged 12, (count 1); homosexual intercourse with LB in the same period (count 2); a further count of homosexual intercourse with LB in the same period (count 3); indecent assault of LB between 1 January 1995 and 13 December 1996, LB being 13-14 years of age (count 4); homosexual intercourse with LB in the same period (count 5); a further count of homosexual intercourse with LB in the same period (count 6); homosexual intercourse with LB between 31 December 1997 and January 1998, LB being 16 (count 9).
5      The appellant contends that the verdicts of guilty on counts 7 and 8 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on the other counts.
6      The complainant, who was born on 14 December 1981 and was aged 18 at the time of the trial, moved from Victoria with his family at the end of 1993. He stated that he met the appellant a couple of weeks later at…

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 Davis

Details

AGLC: R v Davis [2001] NSWCCA 70
Case: [2001] NSWCCA 70
Decision Date: 8 March 2001

CaseChat Overview and Summary

The case of R v Davis was heard in an Australian court, where the defendant, Davis, faced multiple charges including assault, indecent assault, and robbery. The proceedings were a result of a series of incidents that led to Davis being tried on a total of nine counts. The jury found Davis not guilty on seven counts, while convicting him on two counts of indecent assault and one count of robbery. The prosecution appealed the acquittals, while Davis challenged the severity of his sentence for the indecent assault charges.

The court was tasked with determining whether the jury's verdicts were reasonable and supported by the evidence presented. The key legal issues involved the sufficiency of the evidence to support the jury's findings and the appropriateness of the sentence handed down to Davis for the indecent assault charges. The prosecution argued that the jury's decision to acquit Davis on seven counts was unreasonable, while Davis contended that his sentence was excessively harsh.

In its judgment, the court found that the jury's verdicts were not unreasonable and were adequately supported by the evidence. The court noted that while there was insufficient evidence to support the jury's acquittals on the majority of the charges, the evidence was sufficient to support the convictions on the two counts of indecent assault and one count of robbery. However, the court did find that the sentence imposed on Davis for the indecent assault charges was excessive. The court ordered a retrial on the sentencing for these charges, while confirming the other aspects of the jury's verdict and the sentence for the robbery charge.

The final orders of the court confirmed the acquittals on seven counts, upheld the convictions on two counts of indecent assault and one count of robbery, and ordered a retrial of the sentencing for the indecent assault charges. The court's decision underscored the importance of ensuring that verdicts are both reasonable and supported by the evidence, while also emphasising the need for sentences to be proportionate to the severity of the crimes committed.

Orders