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R v Dixon

R v Dixon

Case [2001] NSWCCA 39 16 March 2001

Admissibility of Evidence

Criminal Law

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CITATION: R v Dixon [2001] NSWCCA 39

FILE NUMBER(S): CCA 60479/00

HEARING DATE(S): 22/02/01

JUDGMENT DATE:
16 March 2001

PARTIES :

R v Garry John Dixon

JUDGMENT OF: Mason P at 1; Giles JA at 2; Whealy J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/61/0181

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : M. C. Marien - Crown
A. Webb - Appellant

SOLICITORS: S. E. O'Connor - DPP
Sydney Regional Aboriginal Corporation Legal Service - Appellant

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Criminal Appeal Rules

CASES CITED:
Regina v Holden (1917) 34 WN (NSW) 78
Courtney-Smith (No 2) v Regina (1990) 48 A Crim R 49
Regina v Smart (1963) NSWR 706
Williams v Regina (1990) 50 A Crim R 213
R v R A T (2000) NSWCA 77 per Dunford J at 46
Jones v The Queen (1997) 191 CLR 439
R v A R D (2000) NSWCCA 443 Spigelman CJ at (10)
Yagar v The Queen (1977) 139 CLR 28
Jackson v The Queen (1976) 134 CLR 42 at 45
R v McCann (1997) 95 A Crim R 308 at 311
Regina v Birks (1990) 19 NSWLR 677 at 683-5
R v A M (2000) NSWCCA 372
Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at (11)-(12), per Callinan J at (182)
R v Beserwick (1993) 30 NSWLR 510 at 516
R v Fraser (NSWCCA, unreported 10 August 1998 at 28
R v Greenham (1999) NSWCCA 8 at (28)
R v A T M (2000) NSWCCA 475 at (72-77)
R v Tripodina (1988) 35 A Crim R 183 at 191-195
R v King (2000) NSWCCA 507 at paras 49-54
Crampton v The Queen (2000) 75 ALJR 133
R v Johnston (1998) 45 NSWLR 363 at 375
R v Kennedy (2000) NSWCCA 487 at aparas 62-65
R v AT (2000) NSWCCA 342 at paras 66-69
R v Longman (1989) 168 CLR 79 at 90-91

DECISION: 1. Leave to appeal be granted pursuant to r 4 of the Criminal Appeal Rules in relation to ground 1(a) of the Grounds of Appeal. 2. That the appeal against conviction be allowed. 3. That the convictions and sentences be quashed. 4. That a new trial be ordered.

IN THE COURT

OF CRIMINAL APPEAL

60479/00

MASON P
GILES JA
WHEALY J

FRIDAY 16 March 2001

REGINA v Garry John DIXON

JUDGMENT

1 MASON P: I agree with Whealy J.

2 GILES JA: I agree with Whealy J.

3 WHEALY J: This is an appeal against conviction on four charges of child sexual assault after trial by jury in the District Court.

4 The appellant was arraigned on an indictment containing four counts. Counts 1 and 3 related to charges of having sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900 (NSW). The first charge alleged an offence committed between 1 July 1995 and 31 December 1995 at Shalvey. The…

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 Dixon

Details

AGLC: R v Dixon [2001] NSWCCA 39
Case: [2001] NSWCCA 39
Decision Date: 16 March 2001

CaseChat Overview and Summary

Garry John Dixon (appellant) was convicted by a jury in the District Court of four counts of child sexual assault. The appeal was against conviction only. The appellant argued that the trial judge had erred in failing to give adequate directions on the use of "complaint" evidence, had erred in instructing the jury that if they reached a verdict of "guilty" or "not guilty" on the first charge, they would find the same verdicts on all other charges, and that he was otherwise denied a fair trial according to law. The Court of Criminal Appeal allowed the appeal against conviction and quashed the convictions and sentences. A new trial was ordered.

In relation to the "complaint" evidence, the Court held that the trial judge's directions were adequate and appropriate. The directions were in line with the defence tactic of highlighting inconsistencies in the complainant's evidence. The Court noted that the trial counsel wanted the jury to accept the evidence of the witnesses because it threw doubt on the reliability of the complainant. The Court held that it was not open for appeal counsel to argue that the jury should have been directed not to accept this evidence.

The Court also held that the trial judge's instruction to the jury that if they found the accused guilty or not guilty on the first charge, they would find the same verdicts on all other charges, was not erroneous. The Court noted that the central issue throughout the trial had been the credibility of the complainant in relation to the matters she alleged against the appellant. The Court held that the instruction was a practical comment by the trial judge as to a practical approach which might be adopted by the jury.

Finally, the Court held that the appellant was otherwise denied a fair trial according to law because the trial judge failed to give adequate directions in relation to the evidence elicited from the complainant's mother. The evidence was not admissible on any basis and it was the duty of the trial judge to explain to the jury the purpose for which the evidence had been placed before them. The Court held that the brief paragraph in the trial judge's summing-up did not adequately do justice to the principles to which the Court had referred. The Court held that the failure to give adequate directions in relation to this evidence was attended by a real risk that the jury would make use of it wrongly to the appellant's detriment. The likelihood of misuse was so high as to raise the real possibility of a miscarriage of justice.

Orders