Appellant charged with eleven sexual offences - one alleged victim - evidence of admission by appellant - evidence disclosing similar offence with another victim - appellant raises character - cross-examination - evidence of similar offences allegedly committed on two other victims - application of decision in Hoch v R (1988) 165 CLR 292 post Evidence Act 1995 - tendency evidence - directions on character evidence - inconsistent verdicts.
Appeal against conviction refused. Leave to appeal against sentence refused.
IN THE COURT OF CRIMINAL APPEAL
60165/99
MASON P SIMPSON J
DOWD J
13 October 2000
REGINA v OGD No.2
Judgment
1 MASON P: I agree with Simpson J.
SIMPSON J :
2 On 8 March 1999 the appellant was arraigned in the District Court on an indictment containing nine counts of homosexual intercourse with a male under eighteen years, one count of attempting to commit the same offence, and one count of sexual intercourse without consent. He entered a plea of not guilty to each charge and a jury was empanelled. On 1 April 1999 the jury returned verdicts of guilty on eight of the nine charges of homosexual intercourse, the charge of attempt, and the charge of sexual intercourse without consent, and a verdict of not guilty on one charge of homosexual intercourse. On 8 April 1999 Judge Solomon sentenced the appellant. On the count of sexual intercourse without consent he imposed a term of imprisonment for nine years and one month, made up of a minimum term of six years and one month and an additional term of three years. On each other charge on which the appellant had been convicted he imposed a fixed term of imprisonment for four years and one month. He specified that all sentences were to be served concurrently, commencing on 8 April 1999.
3 The appellant appeals against each…
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.
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Details
AGLC
R v OGD (No 2) [2000] NSWCCA 404
Case
[2000] NSWCCA 404
Decision Date
CaseChat Overview and Summary
The appellant in this case, identified as OGD, was charged with eleven sexual offences against one alleged victim. The court had to consider whether evidence of an admission by the appellant, along with evidence of a similar offence involving another victim, was admissible. The appellant argued for the exclusion of certain character evidence, and there was a challenge to the admissibility of evidence of similar offences allegedly committed against two other victims. The court was also required to apply the decision in Hoch v R (1988) 165 CLR 292 in light of the Evidence Act 1995, and to determine the appropriate directions to be given to the jury regarding character evidence and inconsistent verdicts.
The court considered the admissibility of the evidence under the provisions of the Evidence Act 1995, particularly focusing on the tendency evidence provisions and the relevance of character evidence in sexual offence cases. The court examined the principles established in Hoch v R, determining whether the probative value of the evidence outweighed any prejudicial effect. The court also addressed the challenges to the cross-examination of the appellant and the admissibility of evidence concerning other alleged victims. The reasoning involved a careful analysis of the balance between the probative value of the evidence and the potential for prejudice, in line with the statutory framework and judicial precedent.
The court concluded that the evidence of the admission and the similar fact evidence was admissible as it had significant probative value in establishing the appellant's propensity to commit the charged offences. The court provided detailed directions to the jury on the proper use of character evidence and the significance of inconsistent verdicts. The court determined that the evidence was properly admitted and that the jury was adequately directed on the considerations to be applied in evaluating the evidence.
The final orders of the court upheld the conviction, confirming that the evidence was properly admitted and that the jury's verdict was consistent with the directions provided. The court emphasised the importance of ensuring that the jury understood the role of character evidence and the significance of inconsistent verdicts in sexual offence cases.