R v PGM

Case [2006] NSWCCA 310

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      PGM v Regina [2006]  NSWCCA 310

FILE NUMBER(S):
2006/1392

HEARING DATE(S):               20 September 2006

DECISION DATE:     06/10/2006

PARTIES:
PGM, Regina

JUDGMENT OF:       McClellan CJ at CL Barr J Buddin J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/1116

LOWER COURT JUDICIAL OFFICER:     Marien SC, DCJ

COUNSEL:
D Baran
D Frearson SC

SOLICITORS:
Dorrough Smart Solicitors
S Kavanagh

CATCHWORDS:
Criminal law - sexual intercourse with a person under the age of ten years - indecent assault of  a person under the age of ten years - whether open to jury to be satisfied beyond reasonable doubt of guilt of appellant; Criminal law - whether trial counsel incompetent; Criminal law - whether evidence correctly admitted; Criminal law - whether accused raised good character - whether discretion to allow Crown to adduce evidence in rebuttal of good character miscarried.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

DECISION:
Allow the appeal and set aside the convictions. Order a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1392

McCLELLAN CJ AT CL
BARR J
BUDDIN J

6 OCTOBER 2006

PGM v REGINA

Judgment

  1. McCLELLAN CJ at CL: I agree with Barr J. As his Honour observes the trial judge rejected the tender of the many sexual images in the appellant’s computer confining the Crown to eliciting evidence of the one image relevant to count 5. This decision reflected a conclusion that evidence of the other images was so prejudicial that the trial would miscarry.

  2. Accordingly, in circumstances where evidence of the existence of the many other images has been admitted in the erroneous belief that the appellant had raised his character, this Court is left with no alternative but to order a new trial. The appellant has not been fairly tried according to law.

  3. BARR J:  The appellant, to whom I shall refer as PGM, appeals against convictions entered up in the District Court and seeks leave to appeal against the resulting sentences. All the offences were said to have been sexual in nature and to have been committed between 1 October 2003 and 5 May 2004 on a child, whom I shall call C, at the appellant’s house in a suburb of Sydney. The counts may be summarised as follows -

    Counts 1, 2 and 6: sexual intercourse with a person under the age of ten years;

    Counts 4, 5 and 7: assault with an act of indecency on a person under the age of ten years.

  4. Counts 1, 2 and 6 were laid under s66A Crimes Act, which provides for a maximum sentence of imprisonment for twenty-five years. The remaining counts were laid under s61M(2) Crimes Act, which provides for a maximum sentence of imprisonment for ten years.

  5. The sentences were as follows -

    Count 7: imprisonment for a fixed term of four years and six months commencing on 10 June 2005 and expiring on 9 December 2009;

    Counts 4 and 5: imprisonment for a fixed term…

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Details
AGLC
R v PGM [2006] NSWCCA 310
Case
[2006] NSWCCA 310
Decision Date

CaseChat Overview and Summary

The appellant was charged with sexual intercourse with a person under the age of ten years, and indecent assault of a person under the age of ten years. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court was also required to consider whether the trial counsel was incompetent, whether the evidence was correctly admitted, and whether the accused had raised good character. Additionally, the court had to determine if the discretion to allow the Crown to adduce evidence in rebuttal of good character was miscarried.

The court examined the evidence of the pornographic images found on the appellant's computer and the CD ROMs. The judge viewed a large proportion of the material and found it deeply disturbing. The court held that it was appropriate for the Crown to lead evidence from a police officer involved in the seizure of the hard drive and the CD ROMs to establish that one image was found on the hard drive or the CD ROMs matching the description given by the complainant. The court found that the evidence was relevant and admissible in determining the appellant's guilt. The court also found that the trial counsel was competent, and the discretion to allow the Crown to adduce evidence in rebuttal of good character was not miscarried.

The court held that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt based on the evidence presented. The court found that the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt. The court also found that the trial counsel was competent, and the discretion to allow the Crown to adduce evidence in rebuttal of good character was not miscarried.

The final orders of the court were that the appellant be found guilty of the charges brought against him.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

When they learned what the complainant was saying about having seen the image on the appellant’s computer police obtained and executed a search warrant at his house. Under the power of the warrant they seized the appellant’s computer and associated equipment. On examination the computer or compact discs associated with it or both proved capable of displaying pornographic images. This Court was told that there were between five hundred and one thousand such images. The Crown served on the defence a tendency notice under the provisions of s97 Evidence Act, referring to the material as follows - Images of pornographic material taken from Apple Mac computer and CD ROMs and Zip disks – seized during search of … In his judgment rejecting the tender his Honour discussed the images in these words - I have, for the purpose of this application, viewed two CD ROMs which I have marked as exhibit C on the voir dire. More correctly I should say that I have viewed a large proportion of that material although not all of it. There are contained on the two CD ROMs which comprise exhibit C (which I am told contains the images which were taken from the hard drive of the computer and the CD ROMs which were in the study in the accused’s home) being images of prepubescent girls either alone or with other prepubescent children either performing sexual acts upon themselves or on the other children. There are also images of prepubescent girls involved in sexual acts with adult males and females.There is also other material which can be described as images of adolescent and adult females involved in various sexual activities. The Crown contends that that material is also sought to be tendered under the tendency notice. It is an understatement to say that the material that I viewed is deeply disturbing including, as it does, adult women and adult men involved in sexual activities with young prepubescent girls and boys. The sexual activities include penetration of a child’s vagina by the penis of an adult male or a prepubescent boy and the involvement of, as I say, adult women in these activities. There is also depicted, for example, on a video an adult male performing cunnilingus on what appears to be a prepubescent girl. His Honour drew attention to the complainant’s description of the image she had seen on the occasion giving rise to the fifth count and observed that there was “a large number” of images fitting her description but that, understandably, police had not asked the complainant to look at any image to see whether she could identify it. (She was only seven years old when spoken to by the police). Accordingly, it was impossible to point to any particular image as the one the complainant saw. His Honour continued - In my view, in the circumstances of this case, and given those difficulties it would be appropriate for the Crown to lead evidence from a police officer involved in the seizure of the hard drive and the CD ROMs from the study at the accused’s home to give evidence that an image, and I emphasise an image, that is one image, was found on the hard drive or the CD ROMs found in the accused’s study matching the description of the girl described by the complainant.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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