R v Harbulot - [2003] NSWCCA 141

CITATION: Regina v Harbulot [2003] NSWCCA 141

HEARING DATE(S): 03/03/03

JUDGMENT DATE:
21 May 2003

JUDGMENT OF: Giles JA at 1; Dunford J at 2; Smart AJ at 3

DECISION: Appeal dismissed

CATCHWORDS: Sexual intercourse without consent - admission of complaint evidence - probative value not outweighed by danger of unfair prejudice - hearsay evidence - s.165 warning not required in circumstances - summing-up not unbalanced - Crown case was strong and summing-up reflected that - Defence case was put fully.

LEGISLATION CITED: Evidence Act 1995 s 165(1), (2)(a)

CASES CITED: Clarke (2001) 123 A Crim R
Cross on Evidence 6th Aust Ed 2001 [15260]
R v Stewart (2001) 52 NSWLR

PARTIES :
Regina v Peter Raymond Harbulot

FILE NUMBER(S): CCA 60160/02

COUNSEL: (C) D Frearson
(R) J Miller

SOLICITORS: (C) S E O'Connor
(R) Parry Carrroll Kanjian

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/31/0354

LOWER COURT
JUDICIAL OFFICER : McGuire DCJ

60160/02

GILES JA

DUNFORD J

SMART AJ

Wednesday, 21 May 2003

REGINA v PETER HARBULOT

Judgment

1. GILES JA: I agree with Smart AJ

2. DUNFORD J: I agree with Smart AJ

3. SMART AJ: Peter Harbulot appeals against his conviction after a three day trial of the offence that he on 25 June 2001 at Wickham did have sexual intercourse with NH without her consent, knowing that she was not consenting. He was sentenced to imprisonment for 3 years 6 months to commence on 7 March 2002 with a non-parole period of 2 years. There is no application for leave to appeal against sentence.

4. The appellant complained that the judge had erroneously admitted evidence of complaint, failed to direct the jury as required by s.165 of the Evidence Act 1995, delivered an unbalanced summing-up to the appellant's detriment and that there had been a miscarriage of justice.

5. The Crown Case

NH and the appellant met around August/September 2000 at the Lucky Country Hotel, Newcastle and over the ensuing weeks became friendly. For about four weeks from early December 2000 to early January 2001 NH lived at the appellant's flat. After NH left that flat she and he kept in touch and met up about weekly. They often had a drink together at the Lucky Country Hotel.

6. A few days before Sunday 24 June 2001 NH telephoned the appellant in Katoomba where he was playing in a music festival. She enquired when he would be home and what he was doing. She wanted to catch up with him. She arranged to meet him at the Lass O'Gowrie Hotel, Wickham, Newcastle on Sunday 24 June 2001. He was playing there from 7.30 p.m.

7. On Sunday 24 June 2001 NH's flatmate, Tammie dropped NH off at the Lass O'Gowrie Hotel about 7.30 pm. The appellant was playing. About five minutes after NH arrived the appellant came over and spoke with her. He told her that he was playing again soon. As she had no money he lent her ten…

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 Harbulot

Details

AGLC: R v Harbulot [2003] NSWCCA 141
Case: [2003] NSWCCA 141
Decision Date: 21 May 2003

CaseChat Overview and Summary

In the case of R v Harbulot, the defendant faced charges of sexual intercourse without consent. The case was heard in a court of appeal, where the defendant challenged both the admission of certain evidence and the fairness of the summing-up by the trial judge. The crux of the appeal was the admissibility of complaint evidence and whether the trial judge appropriately weighed the probative value against the risk of unfair prejudice. Additionally, the defendant questioned whether a warning under section 165 of the Evidence Act was necessary and whether the summing-up by the trial judge was balanced.

The court considered the legal issues surrounding the admissibility of the complaint evidence, focusing on whether its probative value outweighed any potential for unfair prejudice. The court also evaluated the necessity of a section 165 warning, considering the context and circumstances under which the evidence was given. Furthermore, the court examined whether the summing-up by the trial judge was balanced and whether it adequately reflected the strength of the Crown’s case and the defence's arguments.

The court found that the complaint evidence was properly admitted, as its probative value significantly contributed to the case without being unfairly prejudicial. The court determined that a section 165 warning was not required in these circumstances, as the evidence was not hearsay in the context presented. The court also concluded that the summing-up by the trial judge was balanced, accurately reflecting the strong case presented by the Crown and the defence’s arguments. The appeal was dismissed, affirming the defendant's conviction.

No further orders were made, and the conviction was upheld.

Orders