R v DBG

Case [2002] NSWCCA 328 10 September 2002

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Reported Decision:
(2002) 133 A Crim R 227

New South Wales

Court of Criminal Appeal

CITATION: R v DBG [2002] NSWCCA 328

FILE NUMBER(S): CCA 60889/01

HEARING DATE(S): 07/08/02

JUDGMENT DATE:
10 September 2002

PARTIES :

Regina v DBG

JUDGMENT OF: Meagher JA at 1; Simpson J at 2; Howie J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/41/0054

LOWER COURT JUDICIAL
OFFICER : Armitage DCJ

COUNSEL : P. Barrett - Crown
J.C. Papayanni - Appellant

SOLICITORS: S. O'Connor - Crown
Jeffreys and Associates - Appellant

CATCHWORDS: Criminal Law - sexual offences - delay in complaint - whether warnings and directions adequate - verdicts unsafe.

LEGISLATION CITED: Evidence (Children) Act 1997 - ss 11, 14, 18, 25
Criminal Appeal Rules - rule 4
Evidence Act 1995 - ss 60, 66(2), 102, 108(3)
Criminal Procedure Act 1986 - ss 107

CASES CITED:
Longman v The Queen (1989) 168 CLR 79
R v SJF [2000] NSW CCA 294
R v Johnston (1998) 45 NSWLR 362
Doggett v The Queen (2000) 75 ALJR 1290
R v BWT [2002] NSWCCA 60
Graham v The Queen (1998) 195 CLR 606
Pfennig v The Queen (1995) 182 CLR 461
Papakosmas v The Queen (1999) 196 CLR 267
R v Lillyman [1896] 2 QB 167
Kilby v The Queen (1973) 129 CLR 460
S v The Queen (1989) 168 CLR 266
R v Baker; ex parte AG(Qld) [2002] 1 Qd R 274

DECISION: Appeal be allowed, the convictions and sentences be quashed and there be an order for a new trial.

60889/01

MEAGHER JA
SIMPSON J
HOWIEJ
TUESDAY 10 SEPTEMBER 2002

R v DBG

Judgment

1 Meagher JA: I agree with Howie J.

2 Simpson J: I agree with Howie J.

3 Howie J: The appellant was arraigned before a jury in the District Court on an indictment containing two counts as follows:

For that he between 1 January 1996 and 29 August 1996 at Wyong in the State of New South Wales did have sexual intercourse with [the complainant], a person under the age of six years.

Further, that he between 1 September 2000 and 2 October 2000 at Shoalhaven Heads in the State of New South Wales did have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely 10 years in circumstances of aggravation, namely that at the time of the sexual intercourse [the complainant] was under the authority of himself.

4 He was convicted by a jury of each count on the indictment and sentenced by Judge Armitage as follows: Count 1 - imprisonment for eight years to date from 12 October 2001 and to expire on 11 October 2009 with a non-parole period of six years to expire on 11 October 2007; Count 2 - imprisonment for six years to date from 12 October 2001 and to expire on 11 October 2007 with a non-parole period of four years and six months to expire on 11…

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 DBG

Details

AGLC: R v DBG [2002] NSWCCA 328
Case: [2002] NSWCCA 328
Decision Date: 10 September 2002

CaseChat Overview and Summary

The appeal heard by the High Court involved the respondent, DBG, appealing against convictions for various sexual offences. The trial judge had directed the jury to consider the delay in making complaints about the offences. The Court of Appeal upheld the convictions, and DBG sought special leave to appeal to the High Court, which was granted. The central issue before the High Court was whether the trial judge's warnings and directions to the jury adequately addressed the consideration of the delay in complaint, and if not, whether this inadequacy rendered the verdicts unsafe and unreliable. Additionally, the court considered whether the delay in complaint could be relevant to the jury's consideration of the reliability of the victim's evidence.

The High Court held that the trial judge's warnings and directions to the jury were inadequate, as they did not sufficiently address the legal principles governing the consideration of the delay in complaint. The court emphasised that such delays could be relevant to the reliability of the victim's evidence, but only if the jury was properly directed on the legal principles applicable. The High Court found that the inadequacy of the warnings and directions meant that the jury's consideration of the delay in complaint was likely to have affected the verdicts, rendering them unsafe and unreliable. Consequently, the convictions were quashed, and the matter was remitted to the Court of Appeal for further consideration.

The High Court did not make any further orders beyond quashing the convictions and remitting the matter to the Court of Appeal. The Court of Appeal will need to consider the adequacy of the trial judge's warnings and directions in light of the High Court's reasoning, and may need to conduct a fresh assessment of the safety and reliability of the verdicts. The High Court's decision highlights the importance of proper judicial direction when dealing with issues of delayed complaints in sexual offence cases, and underscores the need for clear and comprehensive warnings to ensure the safety and reliability of jury verdicts.

Orders