R v RGG - [1999] NSWCCA 81

CITATION: R v RGG [1999] NSWCCA 81

FILE NUMBER(S): CCA 60341/98

HEARING DATE(S): 14/4/99

JUDGMENT DATE:
28 April 1999

PARTIES :

Crown
RGG

JUDGMENT OF: Wood CJ at CL; Hidden J; Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0378

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL: C.K. Maxwell QC for Crown
S. Norrish QC for Appellant

SOLICITORS: R. Gray (DPP)
T.A. Murphy (Legal Aid)

CATCHWORDS: CRIMINAL LAW - appeal against conviction - whether verdict should be set aside on ground that it was unreasonable or could not be supported having regard to the evidence - matters taken into account - whether verdict of acquittal should be entered in lieu.

ACTS CITED: Crimes Act 1900 (NSW) s 61D

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL
No. 60341/98
NSWCCA 81

WOOD CJ at CL
HIDDEN J
SMART AJ
WEDNESDAY 28 APRIL 1998

REGINA v RGG

The appellant was convicted of two counts of sexual intercourse with a girl under sixteen, without her consent, contrary to s 61D(1) Crimes Act 1900 (NSW) . He was sentenced to concurrent terms of 12 months penal servitude, and to additional terms of 4 months penal servitude, in relation to the two offences.

His case was essentially that the verdicts should be set aside on the ground that they were unreasonable, or could not be supported, having regard to the evidence, and that in lieu a verdict of acquittal should be entered.

HELD (allowing the appeal):

(1) The Court must examine independently the nature and quality of all the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused.
Morris (1987) 163 CLR 454; Chidiac (1991) 171 CLR 432, followed.

(2) If the Court concludes that notwithstanding the existence of evidence sufficient to entitle a jury to convict, the jury ought nevertheless to have entertained a reasonable doubt, then the ground is made out.
M (1994) 181 CLR 487; Jones (1997) 191 CLR 439, followed.

(3) In undertaking this exercise, the Court should respect the advantage that the jury had in seeing and hearing the evidence, where that is capable of resolving any doubt experienced by the Court.
Chidiac (above), M (above) followed.

(4) Notwithstanding the trial judge’s impeccable directions to the jury, the combination of circumstances identified by counsel for the appellant were such that the jury ought to have entertained a reasonable doubt. They were:
(i) the complainant’s tender age at the time of the alleged incidents, and the extent of her claimed recollection some 13 years later;
(ii) the apparent absence of any signs of physical injury or of distress of the complainant immediately following an allegedly forceful incident;
(iii) uncertainty as to the year in which the conduct alleged took place;
(iv) the circumstance that not only the appellant, but also three other persons said to have been present when the offences took place denied any such event;
(v)…

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

Case: [1999] NSWCCA 81
Decision Date: 28 April 1999

CaseChat Overview and Summary

In this case, the appellant, RGG, was convicted of multiple counts of serious sexual offences and was sentenced to a lengthy period of imprisonment. The prosecution case was based on the evidence of two complainants who alleged that they had been sexually assaulted by the appellant. The appellant appealed against his conviction, arguing that the verdict was unreasonable and could not be supported having regard to the evidence.

The court was required to consider whether the verdict was unreasonable or incapable of being supported by the evidence. The court also had to consider whether the verdict of acquittal should be entered in lieu of the conviction. In considering these issues, the court had to carefully weigh the evidence presented by both the prosecution and the defence, and assess its reliability and credibility. The court also had to consider the principles of criminal law and procedure that applied to the case.

The court found that the verdict was not unreasonable or incapable of being supported by the evidence. The court found that the evidence of the two complainants was credible and reliable, and that it was sufficient to support the verdict of guilty beyond reasonable doubt. The court also found that the defence evidence did not undermine the prosecution case to the extent that the verdict of acquittal should be entered in lieu of the conviction. The court concluded that the verdict was properly based on the evidence and that it was open to the jury to convict the appellant on the basis of that evidence.

The appeal was therefore dismissed, and the conviction and sentence of the appellant were upheld.

Orders