NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: REGINA v ELD [2004] NSWCCA 219
FILE NUMBER(S):
60126/04
HEARING DATE(S): 2/6/04
JUDGMENT DATE: 16/07/2004
PARTIES:
Regina (Appellant)
ELD (Respondent)
JUDGMENT OF: Bell J Howie J Hislop J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/31/0411
LOWER COURT JUDICIAL OFFICER: English DCJ
COUNSEL:
G Rowling (Crown)
T Healey (Respondent)
SOLICITORS:
S Kavanagh
SE O'Connor
CATCHWORDS:
LEGISLATION CITED:
Crimes Act 1900
Crimes Legislation Further Amendment Act 2003
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
DECISION:
1. Allow the appeal and set aside the Judge's ruling that the complainant may not give evidence of the presence of SW and SAH respectively on the occasions charged in the indictment
2. Set aside that part of the Judge's ruling by which she rejected evidence of uncharged indecent assaults committed on the complainant as evidence of the relationship between the complainant and the respondent.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60126/04
BELL J
HOWIE J
HISLOP JFriday 16 July 2004
REGINA v E L D
Judgment
BELL J: This is an appeal brought by the Director of Public Prosecutions (the Director) under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) (the CAA) against rulings made by English DCJ (the Judge) at the conclusion of a voir dire hearing by which she rejected evidence tendered by the Crown at the respondent’s trial.
On 19 March 2004, the respondent was arraigned before the Judge in the District Court at East Maitland on an indictment that charged him with three counts of indecent assault in circumstances of aggravation contrary to s 61M of the Crimes Act 1900 (NSW) (aggravated indecent assault). Each offence was alleged to have been committed on the same complainant, CD.
It is the Crown case that between 1998 and 2001, CD, SW and SAH lived at Nelson Bay and were neighbours of the respondent. They were aged between 8 and 11 years. They used to visit the respondent at his home and accompany him on trips to the beach at Stockton and Bagnalls Beach. CD, SW, and SAH were also friendly with two other girls of their age, ED and CW. In February 2002 each of the girls made allegations that the respondent had indecently assaulted them.
The respondent was charged with the commission of sexual offences against ED, CW, SAH, CD and SW. On 24 March 2003 Herron ADCJ directed the separate trial of the charges relating to each of the complainants.
CD, SW and SAH each made allegations, in the course of video-recorded interviews with officers attached to the Newcastle Joint Investigation Response Team (JIRT), of having been indecently assaulted by the respondent at his home and on trips to the beach.
Count one charged the respondent with an aggravated indecent assault on CD at Nelson Bay between 11 August and 31 December 1998. CD was then aged 8 years. The offence is alleged to have taken place in a shed on…
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- AGLC
- R v ELD [2004] NSWCCA 219
- Case
- [2004] NSWCCA 219
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to decide included the sufficiency of the evidence to support the conviction, the admissibility of certain statements made by the accused, and the appropriateness of the sentence imposed. The court had to consider whether the trial judge had correctly applied the law in admitting and weighing the evidence, and whether the sentence was within the appropriate range. Additionally, the court needed to determine whether the provisions of the relevant statutes, including the Crimes Act 1900, the Crimes Legislation Further Amendment Act 2003, the Criminal Appeal Act 1912, and the Criminal Procedure Act 1986, were applied correctly.
The Court of Criminal Appeal found that the evidence was sufficient to support the conviction, and the trial judge had correctly admitted and weighed the evidence. The court determined that the statements made by ELD were admissible under the Evidence Act 1995, and that they did not prejudice the fairness of the trial. The court also found that the sentence imposed was appropriate and within the range of penalties prescribed by law. The appeal was dismissed, and the conviction and sentence were upheld. The court further found that all statutory provisions were applied correctly throughout the trial and appeal processes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BELL J
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