R v DH

Case [2000] NSWCCA 360 15 September 2000

No judgment structure available for this case.

Type to search within this case.

CITATION: R v DH [2000] NSWCCA 360

FILE NUMBER(S): CCA 60127/99

HEARING DATE(S): 15 August 2000

JUDGMENT DATE:
15 September 2000

PARTIES :

R v DH

JUDGMENT OF: Stein JA at 1; Smart AJ at 124; Ireland AJ at 125

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/61/0206

LOWER COURT JUDICIAL
OFFICER : Nader ADCJ

COUNSEL : Crown - P G Berman
Appellant - R Burgess

SOLICITORS: Crown - S E O'Connor
Appellant - D J Humphreys

CATCHWORDS: CRIMINAL LAW - sexual assault - failure of judge to sum-up on facts - duplicity - use of evidence of sexual assaults not charged - relationship evidence - delay in complaint - complaint direction - corroboration warning - rule 4 Criminal Appeal Rules - unreasonable and unsupported verdict

LEGISLATION CITED: Crimes Act 1900, ss 78N, 405AA, 405B
Criminal Procedure Act 1986, s 99

CASES CITED:
BRS v The Queen (1997) ALJR 1512
Domican v The Queen (1991 - 1992) 173 CLR 555
Jones v The Queen (1997) 191 CLR 439
R v AH (1997) 42 NSWLR 702
R v Ali Ali (1981) 6 A Crim R 161
R v Beserick (1993) 30 NSWLR 510
R v Condon (1995) 83 A Crim R 335
R v Davis [1999] NSWCCA 15
R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported)
R v Khouzame and Saliba [1999] NSWCCA 173
R v RNS [1999] NSWCCA 122
R v Vinh Le [2000] NSWCCA 49
R v Williams (1999) 104 A Crim R 260
R v Zorad (1990) 19 NSWLR 91
RPS v The Queen [2000] HCA 3 (3 February 2000)
S v The Queen (1989) 168 CLR 266
Walsh v Tattersall (1996) 188 CLR 77

DECISION: Appeal against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60127/99

STEIN JA

SMART AJ
IRELAND AJ

Friday, 15 September 2000

R v DH

JUDGMENT

1 STEIN JA:

Introduction

2 The appellant, DH, was indicted on 8 February 1999 before his Honour Acting Judge Nader in the District Court at Dubbo on four counts of having homosexual intercourse with a male person above the age of 10 years and under the age of 18 years, to wit 15 years, (s 78N Crimes Act 1900). I will refer to the complainant, who is the son of the appellant, as DHJ. 3 The first count alleged that between 8 November 1994 and 20 March 1995 at Parkes the appellant, being the father of DHJ, had homosexual intercourse with DHJ, then being about 15 years. 4 The second and third counts alleged acts of homosexual intercourse with DHJ between 21 March 1995 and 16 April 1995 at Forbes. 5 The fourth count alleged that the appellant had homosexual intercourse with DHJ on 3 May 1995 at Forbes. 6 The appellant pleaded not guilty and was tried before his Honour and a jury of twelve. On 10 February 1999 the jury returned verdicts of not guilty by direction of his Honour on counts 2 and 3. On 11 February 1999…

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 DH

Details

AGLC: R v DH [2000] NSWCCA 360
Case: [2000] NSWCCA 360
Decision Date: 15 September 2000

CaseChat Overview and Summary

In the matter of R v DH, the defendant stood accused of several counts of sexual assault. The victim, a young child, alleged that the defendant had engaged in multiple acts of sexual violence over a period of time. The case came before the court for appeal, with the defendant contesting the conviction on the basis that the trial judge had failed to adequately sum up the facts of the case. The trial judge had also allowed evidence of uncharged sexual assaults and evidence of the relationship between the defendant and the victim, and had failed to give a direction on the issue of delay in complaint and provide a corroboration warning.

The court was required to determine whether the trial judge's failure to sum up the facts of the case and provide a direction on delay in complaint was a miscarriage of justice. The court also had to consider whether the evidence of uncharged sexual assaults and relationship evidence was admissible and whether the failure to provide a corroboration warning was a miscarriage of justice. Finally, the court had to assess whether the verdict was unreasonable or unsupported by the evidence.

The court found that the trial judge's failure to sum up the facts of the case and provide a direction on delay in complaint was a miscarriage of justice. The court also found that the evidence of uncharged sexual assaults and relationship evidence was admissible, but that the failure to provide a corroboration warning was a miscarriage of justice. The court found that the verdict was unreasonable and unsupported by the evidence, and allowed the appeal. The conviction was quashed and a retrial ordered.

Orders