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R v Glossop

R v Glossop

Case [2001] NSWCCA 165 4 May 2001

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CITATION: Regina v Glossop [2001] NSWCCA 165 revised - 11/05/2001

FILE NUMBER(S): CCA 60595/00

HEARING DATE(S): 27 April 2001

JUDGMENT DATE:
4 May 2001

PARTIES :

Regina
David John Douglas Glossop

JUDGMENT OF: Meagher JA at 1; Sully J at 2; Dowd J at 57

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0396

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : P. Berman SC - Crown
C. Waterstreet - Applicant

SOLICITORS: S. E. O'Connor - Crown
Murphy's Lawyers Inc. - Applicant

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Criminal Appeal Rules 1952

CASES CITED:
BWM (1997) 91 A Crim R 260
Alexandroaia (1995) 81 A Crim R 286
Bozatsis and Spanakakis (1997) 97 A Crim R 296
Lissof 1999 NSW CCA 364
Pera 2000 NSW CCA 204
Powch (1988) 14 NSWLR 136
Jago v District Court of NSW (1989) 168 CLR 23
The Queen v Glennon (1992) 173 CLR 592
Tillott (1995) 38 NSWLR 1
JMS (1998) VSCA 19

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60595/00

MEAGHER JA

SULLY J

DOWD J

4 May 2001

REGINA v David John Douglas GLOSSOP

JUDGMENT

1 MEAGHER JA: I agree with Sully J

IN THE COURT OF
CRIMINAL APPEAL

60595/00

MEAGHER JA

SULLY J

DOWD J

4 May 2001

REGINA v David John Douglas GLOSSOP

JUDGMENT

2 SULLY J: The appellant, Mr. Glossop, has been presented in the District Court for trial upon an indictment charging against him two serious sexual offences. The victim, and the complainant, is the appellant’s natural son. The earlier offence was allegedly committed between 1 January 1975 and 31 August 1976. The later offence was allegedly committed between 1 September 1977 and 31 December 1977. The appellant has entered a plea of not guilty to each charge.

3 By a motion on notice dated 31 March 2000 the appellant sought, so far as is now relevant, the following relief:

“1. That these proceedings be permanently stayed.

2. Further or in the alternative that the evidence of

be excluded from the Trial.

………………………………………………………….”

4 This motion was heard by Nield DCJ over the four days from 3 to 6 April 2000. In a reserved judgment delivered on 25 July 2000 his Honour refused the application for a permanent stay; and ruled that he could not properly exclude the entirety of the complainant’s proposed evidence at trial. The appellant thereupon applied for a certificate pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The Crown did not oppose the application, and his Honour granted, accordingly, a certificate in the following form:

“I hereby certify that my judgment (copy herewith) given on 25/7/2000 is a proper one for determination on appeal in view of:

1. each complainant’s delay in complaining about the accused’s alleged conduct;

2. the possibility that each complainant’s memory is a false memory, whether or not a “recovered” memory, rather than a true memory;

3. my view that I do…

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 Glossop

Details

AGLC: R v Glossop [2001] NSWCCA 165
Case: [2001] NSWCCA 165
Decision Date: 4 May 2001

CaseChat Overview and Summary

In the case of Regina v Glossop, the appellant, David John Douglas Glossop, appealed against the decision of Nield DCJ in the District Court of New South Wales, which refused to permanently stay the proceedings against him and to exclude the evidence of the complainant, his son, from the trial. The Court of Criminal Appeal, consisting of Meagher JA, Sully J, and Dowd J, dismissed the appeal. The appellant was charged with two serious sexual offences allegedly committed between 1975 and 1977. The appellant pleaded not guilty to the charges. The District Court judge refused to permanently stay the proceedings against the appellant, citing that the delay in bringing charges did not result in unfairness to the accused. The judge also refused to exclude the complainant's evidence at trial, stating that the evidence was not of a "recovered memory" and that it was not for the judge to exclude evidence on the basis that it was unsatisfactory. The Court of Criminal Appeal found that the District Court judge's decision to not permanently stay the proceedings and to not exclude the complainant's evidence was not plainly unjust or unreasonable, and therefore dismissed the appeal.

Orders