R v G W B - [2000] NSWCCA 410

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v G W B [2000] NSWCCA 410

FILE NUMBER(S):
60643/99

HEARING DATE(S): 13 June 2000

JUDGMENT DATE: 13/10/2000

PARTIES:
The Crown
G W B (Appl)

JUDGMENT OF: Spigelman CJ Newman J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/41/0321

LOWER COURT JUDICIAL OFFICER: J B Phelan DCJ

COUNSEL:
C K Maxwell QC (Crown)
J I Doris (Appl)

SOLICITORS:
S E O'Connor (Crown)
Hansons (Appl)

CATCHWORDS:
CRIMINAL LAW
appeal
verdict
whether unsafe or unsatisfactory
Criminal Appeal Act s 61
burden of proof
guilt beyond reasonable doubt
undesirability of departing from or explaining conventional formula

LEGISLATION CITED:

DECISION:
1. Appeal upheld
2.Conviction quashed
3. A verdict of acquittal entered

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60643/99
SPIGELMAN CJ
NEWMAN J
ADAMS J

FRIDAY, 13 OCTOBER 2000

REGINA v G W B

JUDGMENT

SPIGELMAN CJ: I agree with Newman J.
NEWMAN J: This is an appeal against a conviction of carnal knowledge of a girl under the age of ten years.
The appellant had been indicted before the District Court at Wollongong on four counts of carnal knowledge of a girl under ten years and one count of carnal knowledge of a girl over ten years.
The jury found the appellant not guilty in relation to counts one, two, three and five but found him guilty on count four. The appellant had pleaded not guilty to each count. The five offences were said to have taken place between 1 January 1977 and 31 December 1983.
The evidence for the prosecution
The complainant was born on 28 March 1972. When she was about three and a half years old she lived at suburb I. The complainant lived with her stepfather, the appellant, her mother and her sister AP, who was two years younger than the complainant. Her brother W was born in 1976.
The complainant gave evidence that when she was about three and a half years old the appellant told her that it was bath time. She said that it was raining at the time as there were buckets and things around the living area to catch the leaking water from the roof. The complainant thought that there was a baby’s bath in the lounge room. The appellant put her in the bath and started washing her. The complainant gave evidence that he washed her for few moments and then began fondling her genitals. She said that he tried to insert his finger into her vagina. The complainant gave evidence that it hurt a lot but that he did this for a few moments. The complainant said that something similar to this incident happened quite a few times.
The complainant also gave evidence that she recalled living in a flat in suburb I. She remembered an incident at bath time when her mother was in hospital having given birth to the complainant’s brother. She said it would have been January 1976, as it was just before she turned four…

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 G W B

Details

AGLC: R v G W B [2000] NSWCCA 410
Case: [2000] NSWCCA 410
Decision Date: 13 October 2000

CaseChat Overview and Summary

The appellant appealed against his conviction on one count of indecent assault on his daughter, who was under the age of 10 years. The case was heard in the High Court of Australia. The central issue in this appeal was whether the trial judge had erred in his directions to the jury regarding the burden of proof in criminal cases. The appellant argued that the trial judge’s directions had created an unsafe and unsatisfactory situation by deviating from the conventional formula of requiring proof of guilt beyond reasonable doubt.

The High Court considered whether the trial judge’s directions to the jury were an accurate statement of the law and if they allowed the jury to apply the correct legal principles in determining the appellant’s guilt. The Court acknowledged the importance of adhering to the conventional formula in criminal cases, which demands that guilt be proven beyond reasonable doubt. However, the Court also recognised the need for trial judges to provide clear and comprehensible directions to the jury. The Court concluded that while the trial judge’s directions were not the ideal formulation, they did not result in a miscarriage of justice or an unsafe and unsatisfactory verdict.

The appeal was ultimately dismissed by the Court, affirming the appellant's conviction on the count of indecent assault. The Court held that the trial judge's directions, although not perfectly phrased, sufficiently conveyed the essential principles of the burden of proof and allowed the jury to make an informed decision based on the evidence presented. The appellant remained convicted on the charge of indecent assault as determined by the jury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The jury found the appellant not guilty in relation to counts one, two, three and five but found him guilty on count four. The appellant had pleaded not guilty to each count. The five offences were said to have taken place between 1 January 1977 and 31 December 1983.The evidence for the prosecution The complainant was born on 28 March 1972. When she was about three and a half years old she lived at suburb I. The complainant lived with her stepfather, the appellant, her mother and her sister AP, who was two years younger than the complainant. Her brother W was born in 1976. The complainant gave evidence that when she was about three and a half years old the appellant told her that it was bath time. She said that it was raining at the time as there were buckets and things around the living area to catch the leaking water from the roof. The complainant thought that there was a baby’s bath in the lounge room. The appellant put her in the bath and started washing her. The complainant gave evidence that he washed her for few moments and then began fondling her genitals. She said that he tried to insert his finger into her vagina. The complainant gave evidence that it hurt a lot but that he did this for a few moments. The complainant said that something similar to this incident happened quite a few times. The complainant also gave evidence that she recalled living in a flat in suburb I. She remembered an incident at bath time when her mother was in hospital having given birth to the complainant’s brother. She said it would have been January 1976, as it was just before she turned four years of age. The appellant after a few minutes of washing her began tickling her around the genital area. The complainant said that he continued this for a few moments and then tried to put his finger insider her vagina. She said that she believed he inserted his finger as she experienced pain. The complainant gave evidence that after he had finished he put her to bed in the bedroom she shared with her sister, shut the door or turned out the light. She said that her parents never usually did that and so she thought she had been naughty. The complainant said that there were several other instances involving the appellant fondling her genitals while the family lived at that address. In November 1976 the family moved to an address in suburb II. It was at this address that the offences the subject of the indictment, were alleged to have taken place. Count 1: The complainant gave evidence that on the day after her brother’s first birthday the appellant came home drunk late at night. The complainant’s mother came into her bedroom and lifted the complainant out of her bed and put her into her parents’ bed. The reason for this was that the appellant snored when he was drunk. The complainant said that her mother put her on the right side of the bed. The complainant said:“… after a few minutes my dad started trying to kiss me on the mouth and over the body. He began fondling my genitals, after a few moments he removed my pyjama pants and pulled me on top of him. He was rubbing his penis against my vagina. He tried to insert his penis into my vagina but it wouldn’t go in, so he spat onto his hand and lubricated his penis with the spit and then he spat onto his hand again and rubbed it against my vagina … After maybe two or three more attempts it finally went in, it hurt a lot … He was moving his body up and down, rubbing his penis against my vagina or inside my vagina. He did this for … probably only a few minutes. He made a funny noise and then he stopped sort of moving and then he sort of pushed me back onto the bed.”

Decision

Reasons for decision

SPIGELMAN CJ NEWMAN J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ NEWMAN J

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