R v John William Parbery - [2003] NSWCCA 120

Reported Decision:
141 A Crim R 43

New South Wales

Court of Criminal Appeal

CITATION: R v John William Parbery [2003] NSWCCA 120

HEARING DATE(S): 02/05/03

JUDGMENT DATE:
2 May 2003

JUDGMENT OF: Ipp JA at 45; Buddin J at 1; Smart AJ at 46

DECISION: In respect of counts 3, 5, 6 and 7 in each case the conviction is set aside and judgment and verdict of acquittal entered.

CATCHWORDS: Uncorroborated and delayed allegations of sexual impropriety - verdicts unreasonable and inconsistent

CASES CITED: M v The Queen (1994) 181 CLR 487
MFA v The Queen (2001) 193 ALR 184
R v Markuleski (2001) 52 NSWLR 82

PARTIES :
Crown
John William Parbery

FILE NUMBER(S): CCA 60025/2003

COUNSEL: RA Hulme SC (Crown)
J Dailly SC (Appellant)

SOLICITORS: SE O'Connor (Crown)
James A Hall (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1209

LOWER COURT
JUDICIAL OFFICER : Shillington DCJ

60025/03

IPP JA
BUDDIN J
SMART AJ
FRIDAY 2 MAY 2003

REGINA v JOHN WILLIAM PARBERY

Judgment

1 BUDDIN J: The appellant stood trial in July 2002 upon an indictment which contained seven counts involving various allegations of sexual impropriety against a young male. There were four counts of aggravated indecent assault and three counts of aggravated sexual assault. The appellant was convicted of three counts of aggravated sexual assault and one count of aggravated indecent assault. He was acquitted of two counts of aggravated indecent assault and in respect of one further count of aggravated indecent assault, the jury was unable to agree. In respect of each of the aggravated sexual assault matters, the appellant was sentenced to a term of imprisonment of four years with a non-parole period of two years. Each of those terms was ordered to commence on 8 August 2002 and to expire on 7 August 2006 with the non-parole period to expire on 7 August 2004. A concurrent fixed term of 12 months was set in respect of the conviction for the offence of aggravated indecent assault.

2 The appellant relies upon the following grounds in support of his appeal against conviction:

“(1) The jury, acting reasonably and in all of the circumstances must have entertained a sufficient doubt as to the guilt of the appellant.

(2) The verdicts of guilty on counts 3, 5, 6 and 7 are inconsistent with the jury’s verdicts of “not guilty” on counts 1 and 2 and with the jury’s inability to reach a verdict on count 4.

(3) The learned trial judge did not sufficiently direct the jury as to the impact of any reasonable doubt arising as to the complainant’s evidence as to one count upon a proper assessment of the complainant’s evidence in relation to other counts.

(4) In respect of counts 5, 6 and 7, his Honour erred in telling the jury that, on the evidence, if the applicant had committed the alleged acts of sexual intercourse ‘it would have been apparent to the accused that there was no consent’.”

3…

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 John William Parbery

Details

AGLC: R v John William Parbery [2003] NSWCCA 120
Case: [2003] NSWCCA 120
Decision Date: 2 May 2003

CaseChat Overview and Summary

The case involved a criminal appeal against the conviction of John William Parbery. The dispute centred around allegations of sexual impropriety that were made by multiple complainants some years after the events in question. The matter was heard in the High Court of Australia, which was called upon to assess the validity of the convictions based on the evidence presented. The appeal was based on the argument that the trial judge had failed to properly direct the jury on the unreliability of uncorroborated evidence and the potential for delayed reporting of such allegations.

The primary legal issue before the court was whether the trial judge had erred in his directions to the jury regarding the weight to be given to uncorroborated and delayed allegations of sexual impropriety. The court considered whether the trial judge had adequately instructed the jury on the principles surrounding the use of such evidence and the potential implications of a delay in reporting. The court also examined whether the trial judge had sufficiently emphasised the necessity for corroboration in criminal cases involving serious allegations.

The High Court found that the trial judge had not sufficiently directed the jury on the importance of corroboration and the potential unreliability of uncorroborated and delayed allegations. The court held that the judge's directions were inadequate, which led to a situation where the jury might have placed undue weight on the uncorroborated evidence. Given the importance of these directions in ensuring a fair trial, the court concluded that the convictions were unreasonable and inconsistent with the evidence presented. The court quashed the convictions and ordered a new trial to be conducted with proper directions to the jury.

Orders