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R v Rymer

R v Rymer

Case [2005] NSWCCA 310 6 September 2005

Admissibility of Evidence

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Reported Decision:
156 A Crim R 84

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Rymer [2005] NSWCCA 310

HEARING DATE(S): 20 April 2005

JUDGMENT DATE:

6 September 2005

JUDGMENT OF:
Grove J at 1; Barr J at 92; Latham J at 93

DECISION:
APPEAL AGAINST CONVICTION DISMISSED; SENTENCE APPEAL ALLOWED; APPELLANT RESENTENCED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - EVIDENCE - DENIAL BY ACCUSED WHEN CONFRONTED BY POLICE WITH ALLEGATION - DENIAL MAINTAINED AT VIDEO RECORDED INTERVIEW HELD SHORTLY THEREAFTER - OBJECTION BY CROWN TO ADMISSION OF EXCULPATORY MATERIAL - HEARSAY - BASIS OF EXCEPTION TO HEARSAY RULE - MAINTENANCE OF COMMON PRACTICE - GENERAL DUTY OF CROWN TO TENDER SUBJECT TO OBJECTIONABILITY OF CONTRIVED MATERIAL - ACCUSED GIVES EVIDENCE FOLLOWING RULING REQUIRING HIM TO DO SO IN ORDER TO MAKE EARLIER DENIALS ADMISSIBLE - RULING ERRONEOUS BUT NO RESULTANT MISCARRIAGE - DISCUSSION OF VARIETY OF APPROACHES TO EVIDENCE OF EXCULPATORY STATEMENTS - SENTENCE - TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY - IMPOSITIONS IN EXCESS OF MAXIMUM - APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED

LEGISLATION CITED:

s66A Crimes Act 1900
s135 Crimes (Administration of Sentences) Act 1999
s59 Evidence Act 1995

CASES CITED:
Adam v The Queen 2001 207 CLR 297
Graham v The Queen 1998 195 CLR 606
Ibbs v The Queen 1997 163 CLR 447
McCallum v Parole Board [2003] NSWCCA 294
R v Brooker NSWCCA, unrep 21 February 1996
R v Bryant NSWCCA, unrep 27 June 1994
R v Callaghan 1993 70 A Crim R 350
R v Coats 1932 51 NZLR 401
R v Crisologo 1997 99 A Crim R 178
R v Familic NSWCCA, unrep 4 November 1994
R v Higgins 1829 3 C & P 603
R v Keevers NSWCCA, unrep 26 July 1994
R v Latu NSWCCA, unrep 6 July 1993
R v Middleton 1998 100 A Crim R 244
R v Moystyn 2004 145 CLR 304
R v Pearce 1979 69 Cr App R 365
R v Reyes [2005] NSWCCA 218
R v Sharp 1988 86 Crim App R 274
R v Skinner NSWCCA, unrep 28 October 1993
R v Tooke 1990 90 Crim App R 417
R v Williamson 1972 1 NSWLR 291
R v Astill 1992 63 A Crim R 148
Ratten v The Queen (1972) AC 378
The Queen's Case 1820 2 Brod & Bing 286

PARTIES:
Regina v Patrick Wayne Rymer

FILE NUMBER(S):
CCA 2004/3220

COUNSEL:
P. Barrett (Crown)
A. Haesler SC (Appellant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/51/0009

LOWER COURT JUDICIAL OFFICER:
Black DCJ

2004/3220

GROVE J
BARR J
LATHAM J
Tuesday 6 September 2005

REGINA v PATRICK WAYNE RYMER

Judgment

1 GROVE J: This is an appeal following conviction of the appellant on three counts of an indictment after trial before Black DCJ at the Lismore District Court. Count 1 charged sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act

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 Rymer

Details

AGLC: R v Rymer [2005] NSWCCA 310
Case: [2005] NSWCCA 310
Decision Date: 6 September 2005

CaseChat Overview and Summary

The appeal in this case was brought by the appellant, who was convicted of several offences and sentenced to imprisonment. The appellant argued that the trial judge had erred in ruling that exculpatory statements made by him during a video recorded interview were inadmissible. The Crown had objected to the admission of these statements on the grounds of hearsay. The court had to determine the validity of the trial judge's ruling on the admissibility of these statements and whether it led to a miscarriage of justice. The court also needed to assess whether the trial judge was correctly informed about the maximum penalty applicable to the offences, as the sentences imposed exceeded the legal limits.

The court found that the trial judge's ruling on the admissibility of the exculpatory statements was erroneous but did not result in a miscarriage of justice. The court discussed various approaches to the admissibility of such statements, ultimately concluding that the error did not affect the outcome of the trial. Regarding the sentencing, the court determined that the trial judge was misinformed about the maximum penalty for the offences, leading to sentences that exceeded the legal limits. Consequently, the appeal against the sentence was allowed, and the appellant was resentenced.

The court provided a comprehensive review of the law concerning the admissibility of exculpatory statements made during police interviews. It highlighted the importance of maintaining common practice and the general duty of the Crown to tender evidence, subject to any objections. The court also examined the appellant's decision to give evidence following the ruling, which was required to make his earlier denials admissible. The court emphasised that while the ruling was incorrect, it did not result in a miscarriage of justice. The appeal against the sentence was successful due to the trial judge's misinformation about the maximum penalties, leading to an improper sentencing process.

The final orders included the allowance of the appeal against the sentence, the resentencing of the appellant, and a direction that the new sentence should not exceed the maximum penalties applicable to the offences. The court's decision underscored the importance of accurate legal information in sentencing and the need for careful consideration of evidence rules in criminal trials.

Orders