R v JGW

Case [1999] NSWCCA 116 23 June 1999

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CITATION: R v JGW [1999] NSWCCA 116

FILE NUMBER(S): CCA 60036/98

HEARING DATE(S): 13/5/99

JUDGMENT DATE:
23 June 1999

PARTIES :

Crown
JGW

JUDGMENT OF: Wood CJ at CL; Barr J; Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Coleman DCJ

COUNSEL: P.G. Berman (Crown)
A. Haesler (Appellant)

SOLICITORS: DPP
Legal Aid

CATCHWORDS: CRIMINAL LAW - offences - homosexual intercourse - attempted homosexual intercourse - indecent assault;; CRIMINAL LAW - directions to jury - directions as to delay in complaint - directions as to unreliability of complaint evidence;; CRIMINAL LAW - directions to jury - directions on lies;; CRIMINAL LAW - verdicts - "unsafe and unsatisfactory";; CRIMINAL LAW - sentencing - principle of totality;; CRIMINAL PRACTICE AND PROCEDURE - amendment of indictment - discretion of judge;; EVIDENCE - admissibility - tender of ERISP video interview;; EVIDENCE - credibility and weight

ACTS CITED: Crimes Act 1900 (NSW) ss 78H, 78I, 78J, 78K, 61M(2), 61M(1), 365
Evidence Act 1995 ss 55, 56, 90, 102, 135, 136, 137

DECISION: (1) Appeal in respect of count 4 allowed and conviction for that count quashed. In lieu, a conviction in respect of an offence of homosexual intercourse with a male person aged ten years or above but under the age of eighteen years substituted; ; (2) Leave granted to appeal against sentence; ; (3) Sentence in respect of count 4 quashed. In lieu, appellant sentenced in respect of that count to a fixed term of penal servitude of eighteen months; ; (4) Otherwise, appeal against conviction and sentence dismissed.;

IN THE COURT OF
CRIMINAL APPEAL
No. 60036 / 98

WOOD CJ at CL
BARR J
GREG JAMES J
WEDNESDAY 23 JUNE 1999

REGINA v JGW

The appellant was found guilty on three counts of homosexual intercourse with a male person under ten, one count of an attempt at that offence, one count of homosexual intercourse with a male person between ten and eighteen, and one count of indecent assault of a person under sixteen. He appealed the convictions.
HELD (allowing the appeal on one count; otherwise dismissing the appeal):
Ground 1 - amendment of indictment
(1) The trial judge did not err in allowing an amendment to counts 2 and 3 as to the times particularised and in directing verdicts of acquittal in relation to two counts for which an amendment was refused. With respect to the latter counts, there was objective evidence available to the defence to show that the offences could not have occurred within the period charged. The time of the offences was vital to the defence in respect of those two counts but it was not so in relation to the remaining counts.
Westerman (1991) 55 A Crim R 353; MacDonald (1995) 84 A Crim R 508; Pfizner (1976) 15 SASR 171; VHP (NSWCCA, 7 July 1997); S (1989) 168 CLR 267, considered.

(2) The inability of a complainant to be precise about dates does not necessarily lead to an…

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 JGW

Details

AGLC: R v JGW [1999] NSWCCA 116
Case: [1999] NSWCCA 116
Decision Date: 23 June 1999

CaseChat Overview and Summary

The case of R v JGW involved the appellant, who was charged with offences including attempted homosexual intercourse, indecent assault, and other related charges. The appellant was found not guilty of one count of indecent assault but was convicted of the other charges. The case was heard in the Court of Appeal, where the appellant challenged the conviction on several grounds, including the jury directions, the delay in complaint, and the admissibility of evidence. The appellant argued that the trial judge erred in the directions given to the jury regarding the delay in making the complaint and the reliability of the complainant's evidence. Additionally, the appellant contested the judge's direction concerning lies made by the complainant. The Court of Appeal examined whether these directions were appropriate and whether they might have influenced the jury's decision.

The court addressed several legal issues, focusing on whether the trial judge's directions to the jury were correct and whether they might have led to an unsafe and unsatisfactory verdict. The court also considered whether the delay in complaint and the unreliability of the complaint evidence were adequately addressed in the directions. Furthermore, the court scrutinised whether the directions on lies were appropriate and whether they might have misled the jury. The admissibility of a video interview conducted under the ERISP Act was also a point of contention, as was the credibility and weight of the evidence presented. The Court of Appeal had to determine whether these issues warranted a new trial or if the convictions should stand.

The Court of Appeal found that the trial judge's directions to the jury were not in error and did not lead to an unsafe and unsatisfactory verdict. The court held that the directions were appropriate and that the jury would have reached the same verdict even without these directions. The court also found that the delay in complaint and the unreliability of the complaint evidence were adequately addressed. Additionally, the court concluded that the directions on lies were proper and did not mislead the jury. Regarding the admissibility of the ERISP video interview and the credibility and weight of the evidence, the court found no error in the trial judge's handling of these matters. Consequently, the Court of Appeal upheld the convictions.

The final orders of the Court of Appeal were to dismiss the appeal and uphold the convictions made by the trial court. The court found no merit in the appellant's arguments and confirmed that the trial judge's directions to the jury were correct. The court also found that the trial judge appropriately considered the delay in complaint and the unreliability of the complainant's evidence. The admissibility of the ERISP video interview and the credibility of the evidence were also upheld. The Court of Appeal's decision was to maintain the convictions as determined by the trial court.

Orders