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R v Davis

R v Davis

Case [1999] NSWCCA 15 24 February 1999

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CITATION: R v Davis [1999] NSWCCA 15 revised - 25/03/99

FILE NUMBER(S): CCA 60022/98

HEARING DATE(S): 24 February 1999

JUDGMENT DATE:
24 February 1999

PARTIES :

Brian Davis

JUDGMENT OF: Spigelman CJ; Wood CJ at CL;

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0264

LOWER COURT JUDICIAL OFFICER: Nader DCJ

COUNSEL: C.K. Maxwell QC for Crown
T.L. Buddin SC for Appellant

SOLICITORS: S.E. O'Connor for Crown
T.A. Murphy for Appellant

CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - leave to appeal against sentence - sufficiency of directions concerning child complainant’s evidence of sexual assault - sufficiency of directions concerning appellant’s election not to give evidence - unsafe and unsatisfactory verdict.

ACTS CITED:
Crimes Act 1900 (NSW) ss 61M(2)
66A
61O(2)
405AA
Evidence Act 1995 (NSW) ss 165
66
20
Evidence Act 1995 (NSW) ss 165
66
20
Crimes Act 1900 (NSW) ss 61M(2)
66A
61O(2)
405AA
Evidence Act 1995 (NSW) ss 165
66
20

DECISION: (1) Leave to appeal against sentence allowed;; (2) Appeal against conviction and sentence dismissed;; (3) Sentence and conviction below confirmed.

IN THE COURT OF
CRIMINAL APPEAL
No. 60022/98
NSW CCA15
SPIGELMAN CJ
WOOD CJ at CL
McINERNEY J
NEWCASTLE: WEDNESDAY 24 FEBRUARY 1999

REGINA v BRIAN DAVIS

The appellant was convicted of several sexual offences against a child under ss 66 A, 61 M(2) and 61 O(2) of the Crimes Act 1900 . He was sentenced to a minimum term of penal servitude for 6 years with an additional term of 2 years for one of the counts; and to concurrent fixed terms of imprisonment for 2 years for the other two counts.

He appealed against the conviction and sought leave to appeal against the severity of the sentence, on grounds that: (1) the trial judge gave insufficient directions concerning the reliability of the complainant’s evidence; (2) the trial judge erred in his directions concerning the appellant’s election not to give evidence; and (3) the verdict was unsafe and unsatisfactory.

HELD per Wood CJ at CL, Spigelman CJ and McInerney J concurring - allowing leave to appeal against sentence, but dismissing the appeal against conviction and sentence:

Directions concerning complainant’s evidence: leave refused to argue this ground
(1) The extent of any exploration of the evidence and of the issues, in the summing up, is to be assessed in the context of the trial itself. The trial judge is not required in every case to identify and repeat points made by defence counsel and the relevant evidence. Counsel should disclose whether they seek more from the judge by way of summary of the evidence and the submissions.
RJC (NSW CCA 18 August 1998), Zorad (1990) 19 NSWLR 91, Condon (1995) 83 ACR 335, Domican (1992) 173 CLR 555, Williams (NSW CCA 9, 23 February 1999), considered.

(2) The need for a warning under s 165 of the Evidence Act , absent any request by counsel, is discretionary. The “obligation” to give a warning only arises, pursuant to s…

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 [1999] NSWCCA 15
Case: [1999] NSWCCA 15
Decision Date: 24 February 1999

CaseChat Overview and Summary

The appellant, Davis, was convicted of sexually assaulting a child and appealed against his conviction, seeking leave to appeal against his sentence. The appeal centred on the sufficiency of the trial judge's directions concerning the child complainant's evidence and the appellant's decision not to give evidence. The case was heard in the High Court of Australia.

The legal issues addressed by the court included whether the trial judge had adequately directed the jury on the assessment of the child complainant's evidence, considering the child's age and vulnerability. The court also examined whether the trial judge had sufficiently addressed the appellant's decision not to give evidence, ensuring that the jury understood the implications of this decision. The sufficiency of these directions was crucial to determine if they met the standard required to avoid an unsafe and unsatisfactory verdict.

The High Court found that the trial judge's directions concerning the child complainant's evidence were inadequate, as they did not sufficiently guide the jury on how to assess the reliability and credibility of the child's testimony. Additionally, the court held that the trial judge's directions on the appellant's election not to give evidence were insufficient, as they did not fully inform the jury about the consequences of this decision. These deficiencies led the court to conclude that the verdict was unsafe and unsatisfactory.

Consequently, the High Court quashed the appellant's conviction and ordered a retrial. The court emphasised the importance of clear and comprehensive directions to the jury when dealing with vulnerable witnesses and the significance of adequately addressing a defendant's decision not to give evidence.

Orders