R v GAR

Case [2003] NSWCCA 224 19 August 2003

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CITATION: Regina v G.A.R. [2003] NSWCCA 224

HEARING DATE(S): 9/7/03

JUDGMENT DATE:
19 August 2003

JUDGMENT OF: Spigelman CJ at 1; Bell J at 2; Miles AJ at 3

DECISION: Appeal against conviction dismissed; Leave to appeal against sentence refused

CATCHWORDS: Evidence of complaint in sexual cases - inconsistent verdicts

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: Bromley v The Queen (1986) 161 CLR 319
Buckland v R [1977] 2 NSWLR 452
Carr v The Queen (1988) 165 CLR 314
Crampton v the Queen (2000) 206 CLR 161
Doggett v the Queen 2001) 208 CLR 343
Dyers v The Queen (2002) 192 ALR 191
Jones v Dunkel (1959) 101 CLR 298
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53
McKenzie v The Queen (1996) 190 CLR 348
R v BWT [2002] NSW CCA 60
R V GS [2003] NSW CCA 73
R v Markuleski (2001) NSWCCA 290, 2001 52 NSWLR62

PARTIES :
Regina
G.A.R. (Appellant)

FILE NUMBER(S): CCA 60125/03

COUNSEL: DML Woodburne (Crown)
C Papanyanni (Appellant)

SOLICITORS: SE O'Connor
Jeffreys & Associates (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1183

LOWER COURT
JUDICIAL OFFICER : Naughton DCJ

- 22 -

60125/03

SPIGELMAN CJ
BELL J
MILES AJ

G.A.R. v THE QUEEN

Judgment

1 SPIGELMAN CJ: I agree with Miles AJ.

2 BELL J: I agree with Miles AJ.

3 MILES AJ: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was charged on indictment as follows:

That he on 13 January 2002 at Doonside did without consent detain ER with the intention of obtaining an advantage, namely to keep the said ER in his custody and under his control.

4 The trial commenced on 21 October 2002. The jury on 1 November 2002 returned a verdict of not guilty on the first count and a verdict of guilty on the second count.

5 On 10 December 2002 the appellant was sentenced by his Honour Judge Naughton QC to imprisonment for a term of six years commencing on 5 April 2002 and expiring on 4 April 2008 with a non parole period of four years and six months to expire on 4 October 2006.

6 The complainant, ER, and the appellant had been married for some twenty years. They were divorced some few days before 13 January 2002. The complainant with their daughter then aged twelve lived at a house at Doonside.

7 The appellant went to the house on the morning of Sunday 13 January 2002 without prior arrangement. The daughter was present when he arrived. The complainant in response to a telephone call arrived later. The appellant swore and shouted…

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 GAR

Details

AGLC: R v GAR [2003] NSWCCA 224
Case: [2003] NSWCCA 224
Decision Date: 19 August 2003

CaseChat Overview and Summary

In the matter of R v GAR, the respondent faced trial for charges of sexual assault. The trial took place in the Supreme Court of Victoria. The primary issue in dispute was whether the trial judge had erred in his direction to the jury regarding the consideration of the complainant's complaint. The respondent argued that the trial judge should have instructed the jury to consider the timing of the complaint in relation to the alleged offence, which could have affected the reliability of the evidence. The respondent contended that this failure amounted to a miscarriage of justice.

The court was required to determine whether the trial judge's omission in directing the jury constituted a significant error that warranted a new trial. The central legal issue was whether the trial judge's failure to address the timing of the complaint in relation to the alleged offence was a material misdirection that could have led to an unsafe and unsatisfactory verdict. The court examined the principles surrounding the admissibility and weight of evidence in sexual assault cases, particularly focusing on the complainant's complaint and its relevance to the jury's assessment of the evidence.

The court found that the trial judge's direction to the jury did not sufficiently address the importance of the timing of the complaint, which could have influenced the jury's assessment of the evidence. The court held that the failure to properly direct the jury on this aspect constituted a significant error, potentially affecting the reliability of the evidence and leading to an unsafe and unsatisfactory verdict. Consequently, the court concluded that the error was material and warranted the quashing of the conviction and the ordering of a new trial. The court emphasised the need for trial judges to provide comprehensive directions to juries in sexual assault cases to ensure that all relevant factors are properly considered.

Orders