R v Gust - [1999] NSWCCA 265

CITATION: R v Gust [1999] NSWCCA 265

FILE NUMBER(S): CCA 60651 of 1997

HEARING DATE(S): 29/07/1999

JUDGMENT DATE:
22 October 1999

PARTIES :

Colin Alfred Gust (appellant)
Regina (respondent)

JUDGMENT OF: Dunford J at 1; Hidden J at 25; Smart AJ at 62

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0137

LOWER COURT JUDICIAL OFFICER: Nader DCJ

COUNSEL: C. Bruce (appellant)
C.K. Maxwell (Crown)

SOLICITORS: Legal Aid Commission (appellant)
Director of Public Prosecutions (Crown)

CATCHWORDS: CRIMINAL LAW - sexual assault - whether verdict unreasonable - directions on recklessness as to consent and complaint - whether warning about complainant's evidence required

ACTS CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
R v Hemsley (1988) 36 ACrim R 334
Pemble v The Queen (1971) 124 CLR 107
Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v D (1996) 86 ACrim R 41
M v The Queen (1994) 181 CLR 487
R v Kitchener (1993) 29 NSWLR 696
Tolmie (1996) 84 ACrim R 293
Crofts v The Queen (1996) 186 CLR 427
R v Lemura (CCA unreported 18 December 1998)
Papakosmas v The Queen [1999] HCA 37
R v Davis [1999] NSWCCA 15
R v Murray (1987) 11 NSWLR 12
R v Zafiris (CCA unreported 14 September 1998)
R v Vawdrey (CCA unreported 16 April 1998)

DECISION: Appeal dismissed (by majority)

IN THE COURT OF
CRIMINAL APPEAL
60651/97
DUNFORD J
HIDDEN J
SMART AJ

Friday 22 October 1999

R v Colin Alfred GUST
JUDGMENT
1 DUNFORD J: This is an appeal by Colin Alfred Gust against his conviction in the District Court at East Maitland, following his trial before his Honour Acting Judge Nader QC and a jury on a charge of sexual intercourse without consent contrary to s 61I Crimes Act 1900. The appellant also seeks leave to appeal against the sentence of a minimum term of 3 years penal servitude with an additional term of 3 years imposed on him following his conviction. The offence carries a maximum penalty of 14 years penal servitude. 2 The facts of the matter are sufficiently set out in the judgment of Hidden J, which I have had the advantage of reading in draft form. For the reasons given by his Honour, I am not satisfied that this is a case where the jury acting reasonably ought to have had a reasonable doubt and accordingly the ground of appeal that the conviction is unreasonable and cannot be supported by the evidence has not been made out. 3 However, I am not satisfied that there should be a new trial because of the direction given by the trial judge on recklessness in relation to consent.

Directions on Recklessness

4 Some time was spent by counsel on the hearing of the appeal discussing whether there was or was not any basis for the jury to conclude that the appellant was reckless as to whether the appellant was consenting. Not having seen the witnesses…

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 Gust

Details

AGLC: R v Gust [1999] NSWCCA 265
Case: [1999] NSWCCA 265
Decision Date: 22 October 1999

CaseChat Overview and Summary

The case before the court involved a criminal appeal by the respondent, who had been found guilty of sexual assault. The respondent had been convicted based on the testimony of the complainant, who alleged that the respondent had engaged in sexual activity with her without her consent. The appeal was heard by the High Court of Australia, which was asked to determine whether the verdict was unreasonable and whether there were any errors in the trial judge's directions regarding recklessness as to consent and the need for a warning about the complainant's evidence.

The primary legal issue before the court was whether the verdict of the jury was unreasonable and whether the trial judge erred in their directions to the jury regarding recklessness as to consent and the need for a warning about the complainant's evidence. The court was required to consider the sufficiency of the evidence and the appropriateness of the trial judge's instructions to the jury on the relevant legal principles.

The court found that the verdict was not unreasonable and that the trial judge's directions to the jury were appropriate. The court held that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The court also found that the trial judge had correctly directed the jury on the legal principles regarding recklessness as to consent and that there was no requirement for a warning about the complainant's evidence. The court concluded that the appeal should be dismissed, and the conviction and sentence of the respondent should be upheld.

The court's decision was that the appeal was to be dismissed, and the conviction and sentence of the respondent were to be upheld. The court found that the trial judge had properly directed the jury on the relevant legal principles and that there were no errors in the trial that would warrant a new trial or an acquittal. The court also found that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The final order of the court was that the appeal was dismissed, and the conviction and sentence of the respondent were to be upheld.

Orders