R v FH - [2012] NSWDC 283

District Court

New South Wales

Medium Neutral Citation: R v FH [2012] NSWDC 283
Hearing dates: 16 April 2012
Decision date: 16 April 2012
Before: Neilson DCJ
Decision:
Application for trial by judge alone refused

Catchwords: CRIMINAL LAW - Application for trial by judge alone - Re-trial - Hung jury on 8 of 9 counts at first trial - Accused found guilty on one count and subsquent issue estoppel - Expert evidence - Sexually explicit material - Fresh evidence - Utilitarian argument - Estoppel not caused by any reasoning process adopted or any view of the evidence formed by presiding judge
Legislation Cited: Criminal Procedure Act 1986 ss 131 and 132
Cases Cited: Arthurs v State of Western Australia [2007] WASC 182
R v Fardon [2010] QCA 317
R v GSR (1) [2011] NSWDC 14
R v GSR (3) [2011] NSWDC 17
R v Kissier [2011] QCA 223
R v Markou [2011] NSWDC 25.1
TVM v State of Western Australia [2007] WASC 299
Category: Procedural and other rulings
Parties: Regina (Crown)
FH (Accused)
Representation: Mr D Williams (Respondent)
Mr C Steirn SC (Applicant)
Director of Public Prosecutions (Respondent)
Philip Sim & Associates (Applicant)

File Number(s): 2010/254679
Publication restriction: I order that the name of the complainant and any evidence tending to identify the complainant be suppressed

Judgment

This is an application under s 132 of the Criminal Procedure Act 1986 for trial by judge alone.

An election under s 132(1) of the Criminal Procedure Act 1986 was filed in Court this morning. No objection has been taken by the Crown that there has been no compliance with s 132A(1) of the same Act.

It is important to bear in mind some historical matters. On Monday 17 October 2011 the Crown called the accused for trial and presented an indictment containing nine counts.

The first count was that between 14 October 2005 and 31 December 2005 the accused assaulted CC ["the complainant"] and at the time of the assault committed an act of indecency upon her in circumstances of aggravation, namely that at the time of the assault she was under the age of sixteen years, namely eleven years. The allegation by the Crown was of a touching by the accused of the complainant's breasts.

Count 2 was an allegation of sexual intercourse with the complainant, a child then above the age of ten years and under the age of fourteen years, namely eleven years, during the period from 24 October 2005 until 3 June 2006. The allegation was of digital penetration per vaginam.

Count 3 was again alleged to have occurred between 24 October 2005 and 6 June 2006 and was an act of indecency in circumstances of aggravation, namely that the complainant was under the authority of the accused. The allegation by the Crown is that the accused caused the complainant to masturbate his penis until ejaculation.

Counts 4 and 5 were alleged to have occurred on the same occasion. The range of dates given was between 7…

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 FH

Details

AGLC: R v FH [2012] NSWDC 283
Case: [2012] NSWDC 283
Decision Date: 16 April 2012

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus FH, the dispute centred around the refusal of the court to grant an application for a trial by judge alone in a criminal case. The appellant had previously faced a trial where the jury was unable to reach a verdict on eight of the nine charges, but was found guilty on one count. The matter was returned to the court for a re-trial, however, the appellant applied for a trial by judge alone. The legal issues that the court needed to address included the grounds for a trial by judge alone, the circumstances under which a re-trial could be ordered, and the admissibility of fresh evidence in a re-trial. Additionally, the court had to consider the issue of estoppel and whether the appellant was estopped from raising certain arguments in the re-trial.

The court held that the application for a trial by judge alone was refused, as the appellant had not demonstrated any exceptional circumstances that warranted such a trial. The court reasoned that the appellant's arguments were not novel or untested, and that there was no basis for concluding that a trial by judge alone would result in a fairer trial. The court also found that the appellant was not estopped from raising certain arguments in the re-trial, as the estoppel did not stem from any reasoning process adopted or view of the evidence formed by the presiding judge. Furthermore, the court held that the fresh evidence sought to be adduced by the appellant was not admissible in the re-trial, as it would be unfair to the prosecution to allow such evidence to be introduced at this stage.

Orders

Orders of the court

Application for trial by judge alone refused

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

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Medium Neutral Citation:	R v FH [2012] NSWDC 283
Hearing dates:	16 April 2012
Decision date:	16 April 2012
Before:	Neilson DCJ
Decision:	Application for trial by judge alone refused
Catchwords:	CRIMINAL LAW - Application for trial by judge alone - Re-trial - Hung jury on 8 of 9 counts at first trial - Accused found guilty on one count and subsquent issue estoppel - Expert evidence - Sexually explicit material - Fresh evidence - Utilitarian argument - Estoppel not caused by any reasoning process adopted or any view of the evidence formed by presiding judge
Legislation Cited:	Criminal Procedure Act 1986 ss 131 and 132
Cases Cited:	Arthurs v State of Western Australia [2007] WASC 182 R v Fardon [2010] QCA 317 R v GSR (1) [2011] NSWDC 14 R v GSR (3) [2011] NSWDC 17 R v Kissier [2011] QCA 223 R v Markou [2011] NSWDC 25.1 TVM v State of Western Australia [2007] WASC 299
Category:	Procedural and other rulings
Parties:	Regina (Crown) FH (Accused)
Representation:	Mr D Williams (Respondent) Mr C Steirn SC (Applicant) Director of Public Prosecutions (Respondent) Philip Sim & Associates (Applicant)
File Number(s):	2010/254679
Publication restriction:	I order that the name of the complainant and any evidence tending to identify the complainant be suppressed