R v LTP

Case [2004] NSWCCA 109

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v LTP [2004]  NSWCCA 109

FILE NUMBER(S):
60477/03

HEARING DATE(S):               25 March  2004

JUDGMENT DATE: 01/07/2004

PARTIES:
Regina v LTP

JUDGMENT OF:       Dunford J Simpson J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/61/0176

LOWER COURT JUDICIAL OFFICER:     Woods DCJ

COUNSEL:
D C Frearson - Crown
P Segal - Appellant

SOLICITORS:
S E O'Connor - Crown
Quirk Davidson & Easdown - Appellant

CATCHWORDS:
CRIMINAL LAW - sexual assault - complainant daughter of appellant - delay in complaint - necessity for Kilby direction - Longman direction - sufficiency of - multiple counts - different verdicts - whether inconsistent - summing up - directions on onus of proof - whether misleading or confusing - proviso - CRIMINAL LAW - sexual assault - date of offence - legislative changes - offence not in existence at date of offence - fellatio not carnal knowledge - CRIMINAL LAW - sentencing - sexual assault - complainant daughter of appellant - EVIDENCE - limiting cross-examination of complainant - whether any miscarriage of justice

LEGISLATION CITED:
Crimes Act 1900 ss 66, 405
Crimes (Child Assault) Amendment Act, no 149 of 1985
Criminal Appeal Act 1912 ss 6, 7
Criminal Procedure Act 1986 ss 16, 294
Evidence Act 1995 s 41

DECISION:
Appeal allowed on count 4 - verdict of acquittal entered - appeal against conviction on count 5 dismissed -  sentence varied.

JUDGMENT:

- 28 -

IN THE COURT OF
CRIMINAL APPEAL

60477/03

DUNFORD J
SIMPSON J
HOWIE J

THURSDAY, 1 JULY 2004

REGINA  v  LTP

Judgment

  1. DUNFORD J: The appellant has appealed against his conviction on two counts, one of sexual intercourse with a person under 10 years and one of sexual intercourse with a person under authority between the age of 10 and 16 years contrary to the provision of the ss 66A and 66C(2) respectively of the Crimes Act 1900 as they stood at the relevant times, following his trial before his Honour Acting Judge Sir Robert Woods and a jury in the District Court at Dubbo.  He has also applied for leave to appeal against the severity of the sentences imposed on him following such convictions.

  2. The appellant was charged with the following counts-

    1) Sexual intercourse without consent with a person under the age of 16 years, namely 6 years of age; date of offence: between 31 January 1984 and 1 June 1984: s 61D;

    2) Sexual intercourse without consent with a person under the age of 16 years, namely, 6 years; date of offence: between 31 January and 1 June 1984: s 61D;

    3) Carnal knowledge of a girl under the age of 10 years, namely 6 years; date of offence: between 1 June 1984 and 31 July 1984: s 67;

    4) Sexual intercourse with a person under the age of 10 years, namely 9 years; date of offence: between 1 December 1986 and 25 December 1986: s 66A;

    5) Sexual intercourse with a person under authority between…

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AGLC
R v LTP [2004] NSWCCA 109
Case
[2004] NSWCCA 109
Decision Date

CaseChat Overview and Summary

In the case of R v LTP, the appellant was convicted of multiple counts of sexual assault against his daughter. The case came before the court on appeal, with the appellant arguing several grounds for the appeal, including the sufficiency of certain jury directions, the consistency of verdicts, and the admissibility of fresh evidence. The court was tasked with determining the validity of these arguments and their impact on the conviction.

The first issue before the court was whether the jury directions were sufficient and whether they misled the jury on the onus and standard of proof. The court found that the summing up, when read as a whole, did not mislead the jury on these matters, thus the appeal on this ground was unsuccessful. The second issue involved the admissibility of fresh evidence which could potentially indicate a miscarriage of justice. The fresh evidence in question were photographs that showed a cake with nine candles, potentially indicating that the offence occurred on the complainant's eighth birthday rather than her ninth. The court held that this evidence went to a fundamental issue in the trial, and despite the objection that it could have been discovered earlier, it was admitted due to its relevance to the date of the offence.

The court concluded that the fresh evidence could have led the jury to reasonable doubt regarding the date of the offence, which was material given the legislative changes at the time. The discrepancy in the date of offence could potentially mean that the offence did not exist at the time it was alleged to have occurred. Consequently, the court found that the fresh evidence should have been admitted, and it was likely that it would have led to a different outcome if considered by the jury.

Ultimately, the court allowed the appeal on the ground of the fresh evidence, leading to the quashing of the conviction and ordering a retrial. This decision underscores the importance of evidence that can impact the fundamental facts of a case, particularly when legislative changes are involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Summing Up must be read as a whole and in the context of this Summing Up, I can see no basis on which the jury could have been misled as to the onus and standard of proof. This ground is not made out.Ground 5: There is fresh evidence which gives rise to a miscarriage of justice. The events giving rise to count 4 were alleged to have taken place on the occasion of the complainant’s ninth birthday party in December 1986 (T19). I have already noted that in his evidence (at T 372) the appellant apparently accepted that the occasion when he took the photographs at the slumber party was the complainant’s ninth birthday although he denied that the sexual misconduct alleged by the complainant occurred. On the hearing of the appeal, an application was made to admit fresh evidence in the form of an affidavit from the current de facto wife of the appellant to the effect that following the trial, she located other photos of another birthday party, which showed a cake containing nine candles, and the photos were produced. The complainant also swore an affidavit saying in effect that the number of candles on the cake did not always coincide with the birthday being celebrated and she claimed that, notwithstanding the discovery of these additional photos which were obviously of a different birthday, that the events alleged in count 4 nevertheless occurred on the occasion of her ninth birthday. It was objected on behalf of the Crown that this evidence was not fresh evidence and that it could with reasonable diligence have been discovered prior to the trial. The Court admitted the evidence conditionally with the view to ruling on it in due course, and both deponents were cross-examined. It has now been established by cases such as R vBikic [2002] NSWCCA 227 and R v Sleiman [2003] NSWCCA 231 that, where the “fresh” evidence goes to a fundamental issue in the trial that is capable of indicating that there has been a miscarriage of justice or that the jury should have had a reasonable doubt, it will be admitted, notwithstanding that it could have been made available earlier with reasonable diligence. For the reasons which follow, I am satisfied that this evidence does go to a fundamental issue in the trial and should therefore be admitted. The fresh photograph does show nine candles on the cake while Exhibit A at the trial only shows eight, and notwithstanding the explanation advanced by the complainant, I am satisfied that if the fresh evidence had been before the jury, it would not have been open to them that jury be satisfied beyond reasonable doubt that the offence alleged took place on the occasion of the complainant’s ninth birthday party in December 1986, as opposed to the occasion of her eight birthday party in December 1985. In normal circumstances, the date would be immaterial and it would not matter whether it was in December 1985 or December 1986. However, this charge was laid pursuant to s 66A of the Crimes Act 1900, which section was introduced by the Crimes (Child Assault) Amendment Act, no 149 of 1985 and commenced on 23 March 1986: Government Gazette 14 March 1986. The court accordingly received Written Submissions from both parties on the effect of this discrepancy.

Decision

Reasons for decision

DUNFORD J

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Ratio Decidendi

Legal Principle Established

Established by: DUNFORD J

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