R v Kertz - [2019] NSWDC 387

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kertz [2019] NSWDC 387
Hearing dates: 18, 19, 20 March 2019
Date of orders: 27 March 2019
Decision date: 27 March 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
Count 1: Not guilty
Count 2: Not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence.

Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Indecent assault — Circumstances of aggravation
CRIME — Violent offences — Detain for advantage
CRIMINAL PROCEDURE — Trial — Alternative verdict
Legislation Cited: Crimes Act 1900 (NSW) ss 86(2)(b), 111(2), 115A, 428B
Criminal Procedure Act 1986 (NSW) ss 133, 293A
Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50
Castle v The Queen [2016] NSWCCA 148
Fleming v The Queen (1998) 197 CLR 250
Category: Principal judgment
Parties: Director of Public Prosecution (Crown)
Harold Kertz (Accused)
Representation:
Counsel:
N Keay (Crown)
Solicitors:
P Townsend (Legal Aid NSW) (Accused)

File Number(s): 2018/161770
Publication restriction: Statutory non-publication order re identity of complainant

Decision

HIS HONOUR: The accused stood trial before me sitting without a jury on an indictment which contained the following two counts: count 1: That on or about 19 May 2018 he entered the dwelling house of the complainant with intent to commit a serious indictable offence, namely, indecent assault, in circumstances of aggravation, namely, using corporeal violence on the complainant. That is an offence under s 111(2) of the Crimes Act. Count 2 alleges that on 19 March 2018 the accused detained the complainant without her consent with the intention of obtaining an advantage, namely, sexual gratification and at the time of the detaining actual bodily harm was occasioned to the complainant. That is an offence under s 86(2)(b) of the Crimes Act.
I concluded hearing the evidence and the submissions of the parties on 20 March 2019 while on circuit at Goulburn and stood the proceedings over to today for delivery of the verdict and reasons. Despite having asked for a transcript of the evidence, in particular that of the complainant, regrettably I am having to give the verdict and the reasons without the advantage of a transcript.
I am required in this judgment to include the principles of law that I have applied and the findings of facts on which I have relied (see s 133 of the Criminal Procedure Act). There must be exposed in my judgment the reasoning process linking those principles of law to the verdicts that are ultimately reached (see Fleming v The Queen (1998) 197 CLR 250).
The most important principle of law to be applied in any criminal trial is that the onus of proof is on the Crown and proof is required beyond reasonable doubt. The words "beyond reasonable doubt" carry their ordinary English meaning and should be given their ordinary meaning in this…

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 Kertz

Details

AGLC: R v Kertz [2019] NSWDC 387
Case: [2019] NSWDC 387
Decision Date: 27 March 2019

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the respondent, Kertz, in relation to charges of entering a dwelling-house with intent to commit an indecent assault and detaining a person for advantage. The trial was conducted before a judge alone in the County Court of Victoria, with the appeal being heard by the Court of Appeal. The appellant challenged the trial judge's reasons for convicting Kertz of the aggravated form of the offence of entering a dwelling-house with intent to commit a serious indictable offence and the offence of detaining for advantage.

The primary issue for the court was whether the trial judge erred in convicting the respondent of the aggravated form of the offence of entering a dwelling-house with intent to commit a serious indictable offence, given that the trial judge did not provide adequate reasons for this conviction. The court also needed to determine whether the trial judge had correctly considered the evidence in relation to the offence of detaining for advantage. Furthermore, the court had to decide whether the trial judge had appropriately considered the alternative verdict of the non-aggravated form of the offence of entering a dwelling-house with intent to commit an indecent assault.

The Court of Appeal found that the trial judge had erred in convicting the respondent of the aggravated form of the offence of entering a dwelling-house with intent to commit a serious indictable offence. The court held that the trial judge had not provided adequate reasons for this conviction and had not considered all the evidence in relation to the offence. The court also found that the trial judge had not appropriately considered the evidence in relation to the offence of detaining for advantage. However, the court determined that the trial judge had correctly considered the alternative verdict of the non-aggravated form of the offence of entering a dwelling-house with intent to commit an indecent assault. Accordingly, the appeal was allowed in part, and the conviction for the aggravated form of the offence was quashed. The respondent was found not guilty of count 1 but guilty of the non-aggravated form of the offence.

The court ordered that the respondent be acquitted of count 1 but found guilty of the non-aggravated form of the offence of entering a dwelling-house with intent to commit an indecent assault. The court also ordered that the conviction for the offence of detaining for advantage be quashed, and the respondent be acquitted of that charge.

Orders

Orders of the court

Count 1: Not guilty

Count 2: Not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kertz [2019] NSWDC 387
Hearing dates:	18, 19, 20 March 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Count 1: Not guilty Count 2: Not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence.
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Indecent assault — Circumstances of aggravation CRIME — Violent offences — Detain for advantage CRIMINAL PROCEDURE — Trial — Alternative verdict
Legislation Cited:	Crimes Act 1900 (NSW) ss 86(2)(b), 111(2), 115A, 428B Criminal Procedure Act 1986 (NSW) ss 133, 293A
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50 Castle v The Queen [2016] NSWCCA 148 Fleming v The Queen (1998) 197 CLR 250
Category:	Principal judgment
Parties:	Director of Public Prosecution (Crown) Harold Kertz (Accused)
Representation:	Counsel: N Keay (Crown) Solicitors: P Townsend (Legal Aid NSW) (Accused)
File Number(s):	2018/161770
Publication restriction:	Statutory non-publication order re identity of complainant