R v ELD

Case [2004] NSWCCA 219 16 July 2004

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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 J
Friday 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…

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 ELD

Details

AGLC: R v ELD [2004] NSWCCA 219
Case: [2004] NSWCCA 219
Decision Date: 16 July 2004

CaseChat Overview and Summary

The case before the court involved an appeal against conviction and sentence by the accused, ELD, following a trial at the Supreme Court of New South Wales. ELD was convicted of armed robbery under the Crimes Act 1900. The nature of the dispute was the validity of the conviction and the subsequent sentence imposed by the trial judge. The appeal was heard at the Court of Criminal Appeal.

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