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R v Selsby

R v Selsby

Case [2004] NSWCCA 381 9 November 2004

Appeal

Criminal Liability

Admissibility of Evidence

Sentencing

Criminal Law

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CITATION: R. v. SELSBY, Kenneth William [2004] NSWCCA 381

HEARING DATE(S): 14 May 2004

JUDGMENT DATE:
9 November 2004

JUDGMENT OF: Hodgson JA at 1; Hulme J at 68; Hidden J at 69

DECISION: 1. Conviction appeal dismissed. 2. Crown appeal on sentence dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Sexual assaults on minors - Evidence of assaults by appellant on mother of complainants - Whether relevant - Whether danger of prejudice outweighed probative value - Evidence of prior inconsistent statements led by Crown - Use of them in cross-examination to suggest incidents complained of did not occur - Leave then granted to Crown to lead evidence of prior consistent statement - Whether leave should have been granted - Crown appeal against sentence - Parity - Manifest inadequacy

LEGISLATION CITED: Evidence Act 1995 ss.108, 137, 192, Dictionary

CASES CITED: Gipp v. The Queen (1998) 194 CLR 106
Graham v. The Queen (1998) 195 CLR 606
Johnson v. The Queen (2004) 205 ALR 346
Pearce v. The Queen (1998) 194 CLR 610
R v. AEM Snr, KEM & MM [2002] NSWCCA 58
R v. BD (1997) 94 A Crim R 131
R v. JMP [2003] NSWCCA 369
R v. Marsh [2000] NSWCCA 370
R v. Reardon [2002] NSWCCA 203
Stanoevski v. The Queen (2001) 202 CLR 115

PARTIES :
Regina - respondent
Kenneth William Selsby - appellant

FILE NUMBER(S): CCA 60051/04; 60377/03

COUNSEL: Mr. P. Ingram for the Crown
Mr. R. Pontello for the appellant

SOLICITORS: S. Kavanagh for Crown
Markham Geikie Farrugia, Liverpool for appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC02/11/0822

LOWER COURT
JUDICIAL OFFICER : Graham DCJ

CCA 60051/04
CCA 60377/03
DC 02/11/0822

HODGSON JA
HULME J
HIDDEN J
Tuesday 9 November 2004

REGINA v. Kenneth William SELSBY

Judgment

1 HODGSON JA: In February and March 2003, the appellant was tried before Graham DCJ and a jury in two separate trials, one concerning charges of sexual offences against J (a boy) and the other concerning charges of sexual offences against F (a girl).

2 The trial involving J was on an indictment containing eight counts, relating to three separate incidents, each said to have occurred at Vaucluse in the State of New South Wales.

3 The first two counts related to an incident alleged to have occurred between 27 June 1986 and 27 June 1989, and were in identical terms, alleging assault of J and commission of an act of indecency upon him.

4 The next four counts related to an incident alleged to have occurred between 27 June 1988 and 31 December 1990, and alleged that the appellant had sexual intercourse with J. Counts 3 and 5 were in identical terms, alleging that J was then under the age of 10 years. Counts 4 and 6 were also in identical terms and were respectively alleged as alternatives to counts 3 and 5, and they alleged that J was then of or above the age of 10 years and below the age 16 years.

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 Selsby

Details

AGLC: R v Selsby [2004] NSWCCA 381
Case: [2004] NSWCCA 381
Decision Date: 9 November 2004

CaseChat Overview and Summary

The case of R v Selsby involved the appellant who was convicted on several counts of sexual assault against minors. The case came before the court on appeal against both conviction and sentence. The appellant had been found guilty of assaulting his two stepdaughters over a period of time, and the primary legal issue was whether evidence of prior sexual assaults by the appellant on the mother of the complainants was admissible. The court needed to decide whether the probative value of this evidence outweighed the danger of prejudice it might cause to the appellant. Another issue was whether the trial judge correctly exercised his discretion in permitting the Crown to lead evidence of a prior consistent statement by a witness, which was used in cross-examination to suggest that the incidents complained of did not occur.

The court found that the evidence of prior sexual assaults on the mother was not relevant to the charges against the appellant and should not have been admitted. The court reasoned that such evidence could have prejudiced the jury against the appellant without contributing to a fair determination of the charges. Regarding the prior consistent statement, the court held that the trial judge should not have granted leave to the Crown to lead this evidence, as it was used to suggest that the incidents did not occur, which was misleading. The court noted that the evidence was only relevant if it supported the witness's testimony and did not merely reiterate it. Finally, the court considered the Crown's appeal against the sentence, finding it manifestly inadequate. The court held that the sentence did not achieve the aims of denunciation, retribution, and general deterrence, and that it was not commensurate with the severity of the crimes committed.

Orders