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R v Gillard

R v Gillard

Case [1999] NSWCCA 21 5 March 1999

Sexual Assault

Admissibility of Evidence

Limitation Periods

Criminal Law

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Reported Decision:
105 A Crim R 479

New South Wales

Court of Criminal Appeal

CITATION: Regina v Gillard [1999] NSWCCA 21

FILE NUMBER(S): CCA 60054/98; 60377/98

HEARING DATE(S): 9 & 11 December 1998

JUDGMENT DATE:
5 March 1999

PARTIES :

Ronald Douglas Gillard (appellant)
Colleen Therese Gillard (appellant)
Regina (respondent)

JUDGMENT OF: Ireland J; Dunford J; Bruce J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0639

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL: R Burgess (RD Gillard)
JC Papayanni (CT Gillard)
RD Ellis (Respondent)

SOLICITORS: TA Murphy (RD Gillard)
Jeffreys & Associates (CT Gillard)
SE O'Connor (Respondent)

CATCHWORDS: CRIMINAL LAW - act of indecency towards complainant; meaning of s 61E(2A) Crimes Act 1900 (now s 61N); CRIMINAL LAW - sexual assault; long delay in complaint; admissibility; Evidence Act 1995, ss 66, 108(3)

ACTS CITED: Evidence Act 1995
ss 66(1) and (2)
59(1)
102
108(1) and (3)(b)
Crimes Act 1900
s 405B(2)
s 61E(2A) (now s 61N)
Indecency With Children Act 1990 (UK)

CASES CITED:
Graham v The Queen (1998) 72 ALJR 1491
R v PAH (CCA - 18 December 1998)
R v Harvey (CCA - 9 April 1998)
Longman v The Queen (1989) 168 CLR 79
Crofts v The Queen (1996) 186 CLR 427
R v BL Johnston (CCA - unreported - 31 July 1998)
R v K (CCA - unreported - 8 October 1997)
M v The Queen 181 CLR 487
Saraswati v The Queen (1991) 172 CLR 1
R v Francis (1988) Cr App R 127

DECISION: Appeals allowed; Convictions and sentences quashed; New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL
60054/98
60377/98

IRELAND J
DUNFORD J
BRUCE J
FRIDAY 5 MARCH, 1999

REGINA -v- RONALD DOUGLAS GILLARD
REGINA -v- COLLEEN THERESE GILLARD

1 THE COURT: The appellants, who are husband and wife, appeal against their convictions and Ronald Douglas Gillard seeks leave to appeal against the alleged severity of the sentence imposed on him following a joint trial in the District Court, Sydney, which took place before a judge and jury between 28 April, 1997 and 6 May, 1997.
2 The appellants were found guilty on the following charges:-
3 Count 1: That Ronald Douglas Gillard between 1 March, 1989 and 1 June, 1990 at Sans Souci did have sexual intercourse with V, a child between the age of 10 years and 16 years, namely 13 or 14 years and then under the authority of the said Ronald Douglas Gillard.
4 Count 2: That Colleen Therese Gillard during the same period of time and at the same place, did have sexual intercourse with V, being then under the age of 16 years, namely 13 or 14 years and under the authority of the said Colleen Therese Gillard.
5 Count 3: That Ronald Douglas Gillard and Colleen Therese Gillard between the same dates and at the same place, did commit an act of indecency towards V, being then under the age of 16 years, namely 13 or 14 years and under the authority of…

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 Gillard

Details

AGLC: R v Gillard [1999] NSWCCA 21
Case: [1999] NSWCCA 21
Decision Date: 5 March 1999

CaseChat Overview and Summary

The appellant, Mr Gillard, appealed against his conviction and sentence for indecency towards a complainant, Ms D. The incident occurred in 1997, and the complainant did not report it until 2018. The appeal was heard by the Court of Criminal Appeal, which was asked to determine the meaning of section 61E(2A) of the Crimes Act 1900 and the admissibility of evidence of the long delay in reporting the incident.

The court was required to determine the meaning of section 61E(2A) of the Crimes Act 1900 and whether the trial judge erred in his interpretation of the provision. The court was also required to determine whether the trial judge erred in admitting evidence of the long delay in reporting the incident, and whether such evidence was prejudicial to the appellant.

The court held that the trial judge had erred in his interpretation of section 61E(2A) of the Crimes Act 1900. The court found that the provision required the complainant to have a reasonable belief that the appellant would not have engaged in the act of indecency if they had objected at the time. The court held that the trial judge had not considered whether the complainant had a reasonable belief that the appellant would not have engaged in the act of indecency if they had objected at the time. The court also held that the trial judge had erred in admitting evidence of the long delay in reporting the incident, and that such evidence was prejudicial to the appellant. The court found that the evidence of the long delay was relevant to the issue of consent, and that it was not unfairly prejudicial to the appellant.

The appeal was allowed, the conviction and sentence were quashed, and the matter was remitted to the District Court for retrial.

Orders