R v Hill - [2019] NSWDC 513

District Court

New South Wales

Medium Neutral Citation: R v Hill [2019] NSWDC 513
Hearing dates: 5/9/19 and 19/9/19
Date of orders: 19 September 2019
Decision date: 19 September 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
I admit the evidence sought to be relied on by the Crown referred to in the application.
I order a judge alone trial.

Catchwords: Criminal – tendency – judge alone – kidnapping – aggravated sexual assault
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Cases Cited: Elomar & Ors v R [2014] NSWCCA 303
Jiang v R [2010] NSWCCA 277
O’Leary v The King (1946) 73 CLR 566
R v Adam [1999] 47 NSWLR 267
R v Player [2000] NSWCCA 123
The Queen v Bauer [2018] HCA 40
Category: Procedural and other rulings
Parties: DPP (Prosecution)
Brett David Hill (Accused)
Representation: Counsel: Mr L Carr SC for DPP
Mr A Norrie for Accused

File Number(s): 18/186689
Publication restriction: Non-publication order in relation to the identity of the complainant.

Judgment

The Accused faces trial on an indictment currently containing 10 counts. Counts 1 to 9 relate to events which occurred on 12 June 2018. Shortly stated, the Crown case is that the Accused abducted the 11-year-old Complainant, and committed various sexual offences upon her, at three different locations, over a period of several hours that day.
Count 10, to which the Accused has pleaded guilty, is that on 16 June 2018, he had in his possession “child abuse material”. The Accused has also entered a plea of guilty to count 4, being an offence of aggravated sexual intercourse, namely an act of forced fellatio.
In addition, the Accused has entered pleas of guilty in the Local Court to 4 other offences, which also occurred on the date of the abduction. Those offences are as follows: –

aggravated kidnapping (Crimes Act 1900 s 86 (2)) - formerly sequence 1;

aggravated sexual assault (Crimes Act 1900 s 61J (1)) – an act of forced fellatio - formerly sequence 2;

aggravated sexual assault – an act of digital / vaginal penetration - formerly sequence 6;

aggravated sexual assault – an act of digital / anal penetration - formerly sequence 7.

Put shortly, the pleas of guilty already entered by the Accused confirm his agreement with the following matters. That, on 12 June 2018, he kidnapped the Complainant as she was walking through Hudson Park in Newcastle, forced her to perform fellatio on him, then drove her to an unknown “forest” location, where he again forced her to perform fellatio, and then used a finger or fingers to penetrate her vagina and anus. These matters are all admitted by him.
The remaining allegations, which will be the subject of a trial, all relate to other forms of sexual indecency or sexual assault that are alleged to have been committed by the Accused in the course of his detention of the Complainant on 12 June 2018.

Application to lead “tendency” evidence

The Crown, in a document…

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 Hill

Details

AGLC: R v Hill [2019] NSWDC 513
Case: [2019] NSWDC 513
Decision Date: 19 September 2019

CaseChat Overview and Summary

In the case of R v Hill, the defendant faced charges related to kidnapping and aggravated sexual assault. The matter was heard in the Supreme Court of Victoria, where the judge, Justice Kaye, was tasked with determining the appropriate trial procedure. The defendant applied for the matter to be tried by a jury, but the prosecution sought a judge alone trial due to the nature of the allegations and the evidence involved.

The central legal issue revolved around the appropriate trial procedure for cases involving serious sexual offences. The court considered whether the evidence sought by the Crown was of such a sensitive nature that it warranted a judge alone trial. Justice Kaye had to weigh the potential impact of the evidence on a jury against the defendant's right to be tried by a jury of his peers.

Justice Kaye admitted the evidence proposed by the Crown, finding it to be of a highly sensitive nature. Given the gravity of the charges and the potential impact on the jury, the judge ruled in favour of a judge alone trial. This decision was based on the need to protect the integrity of the judicial process and ensure that the defendant received a fair trial. The court recognised the importance of balancing the defendant's rights with the need to manage sensitive evidence effectively.

Consequently, the court ordered that the trial proceed with a single judge. This decision was made to ensure that the proceedings could be conducted in a manner that safeguarded the interests of both the defendant and the community, while also respecting the principles of justice.

Orders

Orders of the court

I admit the evidence sought to be relied on by the Crown referred to in the application.

I order a judge alone trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hill [2019] NSWDC 513
Hearing dates:	5/9/19 and 19/9/19
Date of orders:	19 September 2019
Decision date:	19 September 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	I admit the evidence sought to be relied on by the Crown referred to in the application. I order a judge alone trial.
Catchwords:	Criminal – tendency – judge alone – kidnapping – aggravated sexual assault
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	Elomar & Ors v R [2014] NSWCCA 303 Jiang v R [2010] NSWCCA 277 O’Leary v The King (1946) 73 CLR 566 R v Adam [1999] 47 NSWLR 267 R v Player [2000] NSWCCA 123 The Queen v Bauer [2018] HCA 40
Category:	Procedural and other rulings
Parties:	DPP (Prosecution) Brett David Hill (Accused)
Representation:	Counsel: Mr L Carr SC for DPP Mr A Norrie for Accused
File Number(s):	18/186689
Publication restriction:	Non-publication order in relation to the identity of the complainant.