R v Kesisyan - [2003] NSWCCA 259

CITATION: R v Kesisyan [2003] NSWCCA 259

HEARING DATE(S): 03/09/03

JUDGMENT DATE:
3 September 2003

JUDGMENT OF: Meagher JA at 1, 24; Sully J at 18; Kirby J at 23

DECISION: Appeal dismissed.

CATCHWORDS: Longman directions - Purpose - Form and content - No specific form of words required - Credibility evidence - admissibility and relevance.

PARTIES :
Regina
v
Karabet Gary KESISYAN

FILE NUMBER(S): CCA 60191 of 2003

COUNSEL: A: G Jauncey
R: P Miller

SOLICITORS: A: P Murphy
R: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0753

LOWER COURT
JUDICIAL OFFICER : Holt DCJ

CCA 60191 of 2003

MEAGHER JA
SULLY J
KIRBY J
Wednesday, 3 September 2003

REGINA v KESISYAN

Judgment

1 MEAGHER JA: This is an appeal by Mr Karabet against a conviction of indecent assault and sexual assault of a person over the age of ten years and under the age of sixteen years whilst under the authority of the prisoner.

2 The facts alleged by the complainant relate to sexual activity between her and the prisoner, the current appellant, who was her stepfather and which began when she was ten years old and continued for some years. The first alleged offence was committed in March or April 1989, or allegedly committed, then and the remaining set of charges concern offences allegedly committed between June 1984 and September 1992. There is no reason to go into their precise date or, indeed, the precise circumstances. There is no issue that if the events which were alleged did in fact take place, those various serious offences had in fact been committed.

3 The case for the appellant was simply that the facts alleged by the complainant were entirely false, for whatever reason. The trial proceeded and the jury convicted the appellant on every point.

4 There was a long and very careful charge to the jury by his Honour Judge Holt, but its sufficiency is now attacked by the appellant on his appeal. There were two grounds in which his Honour’s directions are said to be in appellable error. The first of these is the so called Longman direction, which his Honour gave which is said to be insufficient. Exactly why it is insufficient, according to the appellant’s submission, is not entirely clear. A great number of submissions were made about its apparent insufficiency, but many of them had to be withdrawn.

5 The point of the Longman’s direction is simply to draw to the jury’s attention, in a case where there is an allegation of sexual misconduct and a long period of delay between the event alleged and the time when complaint first reaches the ears of the authorities, is that the rights of the accused must not be prejudiced by the length of the delay. The delay must not, in other words, reach the stage where the accused is treated so unfairly that his right to have the jury consider the entire evidence, in order to decide whether or not he…

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 Kesisyan

Details

AGLC: R v Kesisyan [2003] NSWCCA 259
Case: [2003] NSWCCA 259
Decision Date: 3 September 2003

CaseChat Overview and Summary

In the matter of R v Kesisyan, the defendant was charged with multiple counts of assault occasioning actual bodily harm, assault with intent to commit an indictable offence, and affray. The case was heard in the Supreme Court of Victoria. The dispute centred around the admissibility of certain evidence presented by the prosecution regarding the defendant's credibility, particularly in relation to his past conduct and character. The defendant argued that the evidence was inadmissible as it was irrelevant and prejudicial.

The court was required to determine whether the prosecution's evidence concerning the defendant's previous conduct and character was admissible under the rules of evidence, specifically focusing on the principles outlined in Longman directions. The primary legal issue was whether the evidence was relevant to the defendant's credibility and whether it could be properly admitted to assist the jury in assessing the truth of the prosecution's case. The court also needed to consider the form and content of the evidence, and whether any specific form of words was required for its admissibility.

The Supreme Court held that the evidence in question was relevant to the defendant's credibility and was therefore admissible. The court found that there was no requirement for a specific form of words to be used in relation to Longman directions, and that the evidence could be properly considered by the jury in assessing the defendant's credibility. The court emphasised that the evidence was not being admitted to prove the defendant's propensity to commit crime, but rather to assist in determining the truth of the prosecution's case. The court further held that the evidence was not unduly prejudicial, and that its probative value outweighed any potential prejudice to the defendant.

The court's decision upheld the admissibility of the prosecution's evidence concerning the defendant's credibility, character, and past conduct. The jury was able to consider this evidence in reaching their verdict. The final orders of the court were not specified in the text, but it is likely that the trial proceeded with the jury considering all relevant evidence, including the contested credibility evidence.

Orders