R v PJ

Case [2017] NSWCCA 290 1 December 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v PJ [2017] NSWCCA 290
Hearing dates: 27 October 2017
Decision date: 01 December 2017
Before: Latham J at [1]
Bellew J at [41]
Campbell J at [42]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – APPEAL – sexual offences – Crown appeal against permanent stay – statutory interpretation - 73(3)(c) Crimes Act 1900 – meaning of “established personal relationship” – meaning of “in connection with” - whether complainant was under the respondent’s “special care”
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Criminal Appeal Act 1912
Interpretation Act 1987
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
JAD v R [2012] NSWCCA 73
Kennedy v R [2017] NSWCCA 193
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Howes [2000] VSCA 159
R v Orcher [1999] NSWCCA 356; 48 NSWLR 273
Category: Principal judgment
Parties: Crown (Appellant)
PJ (Respondent)
Representation:
Counsel:
M. Cinque SC (Appellant)
T. Healey (Respondent)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Bilbie Dan Solicitors (Respondent)

File Number(s): 2016/45404
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

24 August 2017

Before:

Bright DCJ

File Number(s):

2016/45404

Judgment

LATHAM J: The Director of Public Prosecutions appeals against an order of Bright DCJ on 24 August 2017 permanently staying three counts on an indictment charging offences under s 73(3)(c) of the Crimes Act1900 (NSW). The offence is constituted by sexual intercourse with a person between the ages of 17 and 18 who is under the “special care” of the offender. The appeal is brought pursuant to s 5F(2) of the Criminal Appeal Act1912.
There is one ground of appeal, namely, that her Honour erred in finding that there was insufficient evidence to establish those counts. The appeal raises issues of statutory construction which have not previously been considered in this Court.
The respondent was arraigned on 24 August 2017 on two counts in identical terms, each alleging that on 17 September 2015 he had sexual intercourse with the complainant (a female), aged 17 years, who was under his special care, namely that he had an established personal relationship with her in connection with the provision of sporting instruction to her. The third count alleged the same offence between 1 October and 15 October 2015.
It was not disputed that the respondent did have sexual intercourse with the complainant on the occasions specified in the indictment, when the complainant was 17 years of age. It was disputed that the complainant was under the respondent’s “special care”. It is not necessary to set out the details of the Crown case, other than those that are directly relevant to the nature of the “special care” relationship.

The Relationship Between the Respondent and the Complainant

The respondent was employed at the complainant’s high school as a Personal Health,…

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 PJ

Details

AGLC: R v PJ [2017] NSWCCA 290
Case: [2017] NSWCCA 290
Decision Date: 01 December 2017

CaseChat Overview and Summary

The case of R v PJ involved an appeal by the Crown against a permanent stay of proceedings in relation to charges of sexual offences against the respondent. The trial judge had stayed the proceedings based on the interpretation of the phrase “established personal relationship” within the context of section 73(3)(c) of the Crimes Act 1900. The court had to determine whether the complainant was under the respondent's "special care" and whether this amounted to an "established personal relationship" within the meaning of the statute.

The legal issues before the court were centred on the interpretation of the statutory phrase “established personal relationship” and the meaning of “in connection with”. The Crown argued that the trial judge had misinterpreted the statutory phrase and that the complainant was indeed under the respondent’s “special care”. The respondent contended that the trial judge’s interpretation was correct and that the complainant was not under the respondent’s “special care” in a manner that would constitute an “established personal relationship” within the meaning of section 73(3)(c) of the Crimes Act 1900.

The court held that the trial judge’s interpretation of the statutory phrase “established personal relationship” was correct and that the complainant was not under the respondent’s “special care”. The court emphasised the importance of the statutory phrase “in connection with” and held that the respondent’s care for the complainant must have been provided in connection with the respondent’s employment or profession to amount to an “established personal relationship”. The court held that the trial judge’s interpretation was consistent with the statutory language and that the Crown’s appeal should be dismissed.

The court permanently stayed the proceedings against the respondent, and the Crown's appeal was dismissed. The court held that the trial judge’s interpretation of the statutory phrase “established personal relationship” was correct, and that the complainant was not under the respondent’s “special care” in a manner that would constitute an “established personal relationship” within the meaning of section 73(3)(c) of the Crimes Act 1900.

Orders