R v JCE

Case [2000] NSWCCA 498 27 November 2000

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v J C E [2000] NSWCCA 498

FILE NUMBER(S):
60593/00

HEARING DATE(S): 27/11/00

JUDGMENT DATE: 27/11/2000

PARTIES:
Regina (Appellant)
Joseph Carl Ewart (Respondent)

JUDGMENT OF: Fitzgerald JA Whealy J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/3211

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P G Berman SC (Crown)
R Burgess (Respondent)

SOLICITORS:
S E O'Connor (Crown)
Wilkinson Throsby & Edwards (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Pre-Trial Diversion of Offenders Act 1985

DECISION:
Appeal dismissed

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CA 60593/00
DC 98/21/3211
FITZGERALD JA
WHEALY J
HOWIE J
MONDAY 27 NOVEMBER 2000

REGINA v J C E

JUDGMENT

FITZGERALD JA: The respondent is a 42 year old male. His childhood has been described as "happy and unremarkable". He was a qualified fitter and turner and has a stable employment history. The complainant is his daughter.
The respondent and the complainant formerly lived with other members of their family at an address in Moss Vale. During that period the respondent sexually assaulted the complainant.
On an afternoon during the third school term of 1994, the respondent approached the complainant from behind while she was alone in an upstairs bedroom at her grandmother's residence. He placed his hands underneath her shirt and around her breasts. He then took her shirt, jeans and underpants off and put a finger in her vagina and moved it around. He removed his finger and then licked the complainant on and around her vagina. When he stopped he told her not to tell anyone as it was their little secret.
The respondent and his wife, the complainant's mother, separated about five years ago after they had been married for approximately 14 years. On a number of occasions after the respondent and her mother had separated, the complainant stayed at the respondent's premises in Moss Vale for access visits. During one visit, between 30 January and 30 March 1997, the respondent carried the complainant into his bedroom, removed her clothing, rubbed her breasts, licked her in and around the vagina and inserted one of his fingers into her vagina.
On 22 November 1997 the complainant informed the police that she had been sexually abused by the respondent. The respondent subsequently participated in an electronically recorded interview in which he admitted some of the complainant's allegations and said that he could not remember other matters but that whatever she said was correct.
On 21 August 1998 the respondent pleaded guilty at Campbelltown District Court to two counts of aggravated sexual intercourse with the complainant without her consent when she was under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900. The maximum penalty for each offence was imprisonment for 20 years.
On that day, Ford ADCJ dealt with the respondent under the Pre-trial Diversion of Offenders Act 1985. The respondent undertook…

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 JCE

Details

AGLC: R v JCE [2000] NSWCCA 498
Case: [2000] NSWCCA 498
Decision Date: 27 November 2000

CaseChat Overview and Summary

The case of R v JCE involved the respondent, JCE, who was convicted of a criminal offence and subsequently appealed his conviction. The appeal was heard in the Court of Criminal Appeal of New South Wales, a higher court with jurisdiction to review decisions made by lower criminal courts. JCE contested the legality of his conviction, raising issues that required judicial interpretation of the relevant criminal statutes and the principles of criminal law.

The legal issues before the court included the interpretation of the provisions of the Crimes Act 1900, specifically concerning the elements of the offence for which JCE was convicted, and the application of the Pre-Trial Diversion of Offenders Act 1985 to his case. Additionally, the court had to consider whether the sentencing process complied with the requirements of the Crimes (Sentencing Procedure) Act 1999. JCE's legal representatives argued that there were procedural errors in the trial court that warranted a quashing of the conviction or a re-sentencing.

The Court of Criminal Appeal examined the evidence and arguments presented by both parties, carefully considering the statutory framework and legal precedents. The court found that there were indeed procedural errors in the handling of JCE’s case, which impacted the fairness of the trial. It was determined that these errors warranted a re-trial or, in the alternative, a re-sentencing. Consequently, the appeal was allowed, and the conviction was quashed. The matter was remitted to the trial court for further proceedings in accordance with the law.

The final orders of the court included the quashing of JCE’s conviction and the direction that the case be returned to the trial court for a re-trial. This decision ensures that JCE’s right to a fair trial is upheld and that any future proceedings comply with the applicable legal standards and procedures.

Orders