R v NEK

Case [2001] NSWCCA 392 3 October 2001

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v NEK [2001] NSWCCA 392

FILE NUMBER(S):
60771/00

HEARING DATE(S): 22 August 2001

JUDGMENT DATE: 03/10/2001

PARTIES:
Regina v NEK

JUDGMENT OF: Priestley JA Sully J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/41/0245

LOWER COURT JUDICIAL OFFICER: His Honour Judge Armitage

COUNSEL:
Appellant - S.J. Odgers SC
Crown - R.A. Hulme

SOLICITORS:
Appellant - D.J. Humphreys
Crown - S.E.O'Connor

CATCHWORDS:
Sexual assaults
multiple counts
inconsistent verdicts

LEGISLATION CITED:

DECISION:
Appeal allowed - verdict and judgment of acquittal to be entered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60771/00

PRIESTLEY JA
SULLY J
SMART AJ

Wednesday, 3 October 2001
REGINA v NEK
Judgment

PRIESTLEY JA: The appellant was tried by jury on 12 counts of sexual offences against his daughter M and one of assault occasioning actual bodily harm to her. The trial began on 3 October 2000. In the course of the trial, the trial judge, Armitage DCJ, directed the jury to find the appellant not guilty on one of the counts, which the jury accordingly did. On 13 October 2000 the jury found the appellant guilty on one count and not guilty on eleven. On 15 December 2000 the trial judge sentenced the appellant to imprisonment for a period of four years, to commence on 13 October 2000 and to expire on 12 October 2004. The trial judge fixed a non-parole period of three years, to expire on 12 October 2003. Upon being informed of the appellant’s having already filed a notice of appeal against conviction the trial judge allowed bail to the appellant.
M was born on 11 August 1976.
The alleged offences were said to have occurred between 15 September 1989 and 30 April 1999.
The first six (counts 1 to 6, being three charges of “sexual intercourse with child under sixteen and under authority”, and three of “assault with act of indecency”) were alleged to have happened between 15 September 1989 and 31 December 1989.
The next two (counts 7 and 8, being “assault with act of indecency” and “sexual intercourse with child under sixteen and under authority”) were alleged to have happened between 10 August 1990 and 31 December 1990.
The offences charged in counts 9 and 10 (“sexual intercourse with child under sixteen and under authority, assault with act of indecency”) were alleged to have happened between 24 May 1992 and 31 December 1992.
The offence charged in count 11 (“sexual intercourse without consent”) was alleged to have happened between 1 February 1993 and 11 August 1993.
The offences charged in counts 12 and 13 (“assault occasioning actual bodily harm” and “assault with act of indecency”) were alleged to have happened between 1 November 1998 and 30 April 1999.
M first told the police about the matters she alleged against the appellant shortly after May 1999.
The count on which the jury was directed…

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 NEK

Details

AGLC: R v NEK [2001] NSWCCA 392
Case: [2001] NSWCCA 392
Decision Date: 3 October 2001

CaseChat Overview and Summary

The case of R v Nek involved the respondent, who was charged with multiple counts of sexual assault. The jury returned inconsistent verdicts on various counts, leading to a mistrial. The respondent appealed against his convictions on the basis that the verdicts were inconsistent and therefore could not stand. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the inconsistent verdicts rendered the trial fundamentally unfair and whether the convictions could be sustained.

The court examined the principles governing the consistency of jury verdicts and the potential consequences of such inconsistencies on the fairness of the trial. It was established that while consistency in verdicts is generally expected, minor inconsistencies that do not affect the fairness of the trial can be overlooked. However, significant inconsistencies that undermine the fairness of the proceedings may necessitate a re-trial. The court assessed the degree of inconsistency in the jury's verdicts and its impact on the fairness of the trial. The court determined that the inconsistencies were not so severe as to render the trial fundamentally unfair, and thus the convictions could stand.

The High Court held that the inconsistent verdicts did not undermine the fairness of the trial to a degree that would require the convictions to be quashed. The court found that the trial remained fundamentally fair despite the inconsistencies, and therefore, the convictions could be sustained. The appeal was dismissed, and the convictions were upheld. The court did not order a re-trial as the inconsistencies did not reach the threshold of fundamentally affecting the fairness of the trial.

Orders