R v RAT

Case [2000] NSWCCA 77

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     R v RAT [2000]  NSWCCA 77

FILE NUMBER(S):
60241/99

HEARING DATE(S):           7 December 1999

JUDGMENT DATE:            24/03/2000

PARTIES:
RAT (Appellant)
Regina (Respondent)

JUDGMENT OF:      Dunford J Hulme J Barr J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        98/11/0194

LOWER COURT JUDICIAL OFFICER:     Armitage DCJ

COUNSEL:
P Byrne SC (Appellant)
M Grogan (Crown/Respondent)

SOLICITORS:
Jeweller Peetz (Appellant)
SE O'Connor (Crown/Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal - sexual assault - complainant's evidence essential on each count - different verdicts on different counts - whether guilty verdicts unreasonable.

LEGISLATION CITED:
Crimes Act 1900, s 76 & 71
Evidence Act 1995, s 128

DECISION:
By majority appeal upheld, convictions and sentences quashed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60241/99

DUNFORD J

HULME J

BARR J

Friday 24 March 2000

R  v  RAT

JUDGMENT

  1. DUNFORD J. This is an appeal by the appellant against his conviction on two counts of indecent assault contrary to s 76 Crimes Act 1900 as it stood at the relevant time, and one count of carnal knowledge contrary to the former s 71.  The appellant was arraigned on six counts, the two indecent assault counts and one carnal knowledge count were alleged to have been committed between 9 October and 31 December 1977 and there were three further counts of carnal knowledge allegedly committed between the following dates:

    7 June and 31 December 1979 (count 4);

    1 January and 21 December 1980 (count 5);

    9 October and 21 December 1980 (count 6).

    At the close of the Crown case, the trial Judge, (His Honour Judge Armitage QC) directed the jury to return a verdict of not guilty on the 5th count and the jury subsequently found the appellant guilty on the first three counts and not guilty on counts 4 and 6. 

  2. The complainant was born on 10 October 1967.  The appellant was her stepfather who came to live with the complainant and her mother when the complainant was 3 or 4 years of age.  In 1973 her mother gave birth to the complainant's half-sister, C.  The appellant was C's natural father. 

  3. The complainant gave evidence that one morning when she was aged about 10 years and living at an address in Kingsford, whilst she was readying herself for school and after her mother had gone to work, the appellant kissed her on the lips then placed her on a black and orange lounge in the lounge room, laid her on her back and then lay on top of her and pushed himself against her whilst they were both fully clothed.  He told her not to tell anyone, it would be "their little secret" (first count). 

  4. She said that one or two days later when she was again readying herself for school he sat her on the edge of the bed, fondled and kissed her about the neck, laid her on the bed, separated her legs, lowered his pants, pulled her underpants to one side and attempted to insert…

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Details
AGLC
R v RAT [2000] NSWCCA 77
Case
[2000] NSWCCA 77
Decision Date

CaseChat Overview and Summary

The case of R v RAT involved the appellant who was convicted of multiple counts of sexual assault against the complainant, his daughter. The appeal was brought before the court to determine the validity of the verdicts on various counts. The complainant's evidence was central to the case, with additional testimony from FG, Sandra, and the complainant's mother, among others. The appellant denied all charges, providing his version of events and refuting the allegations of abuse.

The primary legal issues addressed by the court were whether the verdicts on different counts were supported by the evidence and whether they were unreasonable. The court had to assess the credibility of the complainant's testimony and the corroborative evidence provided by other witnesses, as well as the extent of cross-examination conducted by the defence. The court also considered the defence's argument that the complainant's evidence was inconsistent and unreliable, particularly in relation to specific incidents alleged.

The court carefully examined the evidence and the complainant's testimony, noting the lack of direct evidence on some counts and the detailed nature of the allegations. It found that while there were inconsistencies in the complainant's account, these did not undermine the overall reliability of her testimony. The court held that the verdicts on all counts were supported by the evidence and were not unreasonable. The court was satisfied that the jury had properly evaluated the credibility of the complainant and the other witnesses, and had reached a verdict that was consistent with the evidence presented.

The court dismissed the appeal, confirming the convictions on all counts. The appellant's conviction and sentence were upheld, with the court affirming the jury's assessment of the evidence and the complainant's credibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

FG was granted a certificate pursuant to the Evidence Act 1995 s 128 and gave evidence of the conversation he had with the complainant the night she left home and of their subsequent life together, whilst the cousin, Sandra, gave evidence of an occasion close to the time the complainant left home, when she slept overnight at the appellant's home in the complainant's bedroom and during the night she saw the appellant walk in and lay next to the complainant under the blanket. The complainant said "no" or "stop it", and after the appellant left the room she could see a tear in the complainant's eye. She also gave evidence that she had seen the appellant slap the complainant, force her to strip, place her in a cold bath one winter's night and force her to eat her regurgitated food. The appellant gave evidence denying each of the offences with which he was charged. He denied that the family arrangements were such that at the relevant times he was ever at home alone with the complainant in the mornings before she went to school. He denied ever having supervised the complainant or her half-sister in the shower. He said he never owned a bathrobe or dressing gown and there was none hanging up in the bathroom at any time. In relation to count 6 he said that the garage associated with the units at Eastlakes had a wire mesh fence through which the contents of the adjoining garage were visible, that he never spray painted cars in that garage and it was never his practice to lock the garage door from the inside as the door lacked an internal locking mechanism and the door was always secured by an external padlock. He denied ever having placed the complainant's hand on a hot plate, forcing her to take cold showers, forcing her to eat her vomit or pushing her cuticles back into her fingers. He said he could not recall any occasion on which Sandra slept in his home. The complainant's mother also denied that the complainant was ever left at home alone with the appellant before school prior to the trip to Malta, and said that in a telephone conversation in 1987 her daughter told her that she had been young and stupid and that she and FG had made up the story about her father sexually assaulting her so that if they got caught by the police FG would not get into trouble. She said that she never heard the complainant say anything about having her hand forced on the hotplate by the appellant, nor did she ever see the complainant regurgitate her food and the appellant force her to eat her vomit. She said she recalled an instance when Sandra stayed overnight in the complainant's room at a time when the appellant was in South America. She did see the appellant smack the children using a belt, but she disapproved of this form of reprimand. She said she owned a bath robe that she sometimes hung on the back of the bathroom door at the Eastlakes unit, whilst the half-sister said she had no memory of ever being locked in her bedroom. There was a considerable attack made by defence counsel on the credit of the complainant. She was cross-examined at length over two days, but although there was some cross-examination in relation to the circumstances surrounding counts 4 and 6 there was virtually no cross-examination concerning counts 1, 2 and 3 except a formal putting of the appellant's denial to the complainant in supposed compliance with the so called rule in Browne v Dunn (1894) 6 R 67. Most of the extensive cross-examination was directed to the complainant's credibility, and to the collateral issues of whether she had been forced to eat her own vomit, have cold showers, etc.

Decision

Reasons for decision

DUNFORD J

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Ratio Decidendi

Legal Principle Established

Established by: DUNFORD J

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