R v Nemeth - [2002] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v JJN [2002] NSWCCA 281
Hearing dates: 3 July 2002
Decision date: 24 July 2002
Before: Mason P at 1; Hulme J at 2; Simpson J at 35
Decision:
Appeal allowed. All convictions of the Appellant on the charges, the subject of this appeal are quashed. The Appellant be retried.

Legislation Cited:
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
Palmer v R (1998) 193 CLR 1
R v Chant (unreported, CCA NSW, 12 June 1998)
R v E (1996) 39 NSWLR 450
R v F (1995) 83 A Crim R 502
R v Jovanovic (1997) 42 NSWLR 520
R v Smith [2000] NSWCCA 468
R v Uhrig (unreported, CCA, 24 October 1996)

Category: Principal judgment
Parties: Regina
JJN
Representation:
Counsel:
Crown: WG Dawe QC
Appellant: PG Berman
Solicitors:
Crown: SE O'Connor
Appellant: DJ Humphreys

File Number(s): CCA 60591/01
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 August 2001

Before:

Solomon DCJ

File Number(s):

00/21/1096

Judgment

MASON P: I agree with Hulme J.
HULME J: On 30 April 2001 the Appellant was convicted on four counts of indecent assault and four counts of sexual intercourse with his niece. The events, the subject of all charges were alleged to have taken place between 1 August 1998 and 12 January 1999 when the complainant was aged 10.
On 24 August 2001, Solomon DCJ sentenced the Appellant on the indecent assault charges to concurrent fixed terms of 2 years and 6 months and on the sexual intercourse charges to imprisonment for concurrent terms of 6 years and 3 months. The sentences on the sexual intercourse charges were made cumulative on those imposed in respect of the indecent assaults. A non-parole period of 6 years was set.
In respect of the first six counts, the only evidence relied on was that of the complainant. The offences, the subject of the seventh and eighth counts were said to have occurred while the complainant and Appellant were in his bed on 12 January 1999. Evidence additional to that of the complainant relating to these charges was provided by some hearsay statements of the complainant’s mother who purported to recount statements made to her by a George Christou who had either been living at the same premises or was at least there fairly often. The complainant’s mother’s evidence was to the effect that in early January the complainant had told her that the Appellant had been touching her. She, that is the mother, asked Mr Christou to watch the complainant and on 13 January Mr Christou had reported that he was walking quietly on a balcony towards the relevant bedroom and he saw the complainant and Appellant in the bed. Mr Christou said he saw the blanket moving. The complainant saw him and he went “ssh”. Mr Christou then sneaked back downstairs and came up again, this time walking into the room and saying “what am I missing…

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 Nemeth

Details

AGLC: R v Nemeth [2002] NSWCCA 281
Case: [2002] NSWCCA 281
Decision Date: 24 July 2002

CaseChat Overview and Summary

In the case of Regina v Nemeth, the appellant was convicted on eight counts: four counts of indecent assault and four counts of sexual intercourse with his niece, who was aged 10 at the time of the alleged offences. The Court of Criminal Appeal of the Supreme Court of New South Wales heard the appeal against both conviction and sentence. The legal issues before the court were whether the trial judge's directions concerning the hearsay evidence and the motive of the complainant to lie were adequate under the Evidence Act 1995.

The court found that the trial judge's direction concerning the hearsay evidence was inadequate as it failed to comply with section 165 of the Evidence Act. The judge did not sufficiently warn the jury of the potential causes of unreliability in the hearsay evidence. Additionally, the judge's remarks diluted the effect of the warning given. The second ground of appeal concerning the adequacy of the direction on the motive of the complainant to lie was found to be unsuccessful as the court concluded that the trial judge's direction was sufficient in the circumstances.

As the first ground of appeal was established, the court considered whether to dismiss the appeal under the proviso to section 6 of the Criminal Appeal Act 1912. The court decided against dismissing the appeal, as the errors in the directions were significant and impacted the corroboration of the complainant's evidence. Therefore, the appeal was allowed, all convictions were quashed, and the appellant was ordered to be retried.

Orders