R v SY - [2004] NSWCCA 297

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v SY [2004] NSWCCA 297

FILE NUMBER(S):
60539/00

HEARING DATE(S): 27 February 2004

JUDGMENT DATE: 30/08/2004

PARTIES:
Regina
v
SY

JUDGMENT OF: Ipp JA Simpson J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0068

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
Dr D Arnott (Crown)
Mr H Ginges (Solicitor) (Applicant)

SOLICITORS:
S Kavanagh (Crown)
Mr H Ginges (Applicant)

CATCHWORDS:
Conviction appeal
trial judge reqires Crown to call evidence
whether miscarriage
effect of delay
inadequate Longman direction

LEGISLATION CITED:
Evidence Act 1995 - s135
Criminal Appeal Rules - rule 4

DECISION:
Appeal upheld, verdict of the jury set aside and a verdict of acquittal entered

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60539/00
IPP JA
SIMPSON J
ADAMS J
MONDAY 30 AUGUST 2004

REGINA v S Y

Judgment

THE COURT: The appellant was convicted following his trial in the District Court before Christie DCJ and a jury on 22 June 2000 of five counts of sexual intercourse with a person under the age of sixteen years, one count of sexual intercourse without consent and one count of indecent assault, in each case the complainant being the appellant’s niece. Concurrent sentences of imprisonment were imposed, the lengthiest of which was four years with a non-parole period of two years. The appellant appeals from his convictions.
When this appeal came on for hearing on 27 February 2004, the Court determined that the appeal should be upheld, the verdict of the jury set aside and a verdict of acquittal entered. These are the reasons for that determination.
The complainant’s parents operated a fish and chip shop. On Friday and Saturday nights business was particularly busy and on some of those nights the appellant and his wife (Clare, the complainant’s paternal aunt) helped by having the complainant and her younger sister and brother to stay at their house. The complainant’s sister was four years younger than she was, whilst her brother was nearly nine years younger. The sexual misconduct alleged occurred from sometime after 8 June 1990 (the complainant’s tenth birthday) until 1992 when the appellant went to Lebanon and, it was alleged, resumed in 1995 when he returned to Australia.
In November 1997, the complainant went to Lebanon with her mother for a holiday. They stayed with relatives, including her maternal uncle. Three to four weeks after arriving, the complainant told her uncle what she alleged the appellant had been doing to her. Shortly after, when both the complainant and her mother were in his car, the complainant’s uncle said, “Your daughter has something to tell you”. The complainant then told her mother that the appellant had been touching her since she was ten years old and explained what happened. In cross-examination she said that she told her mother that, “A few years back [the appellant] had been touching me and used to put his tongue and fingers into my vagina.” The complainant’s mother’s recollection of what her daughter had told…

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 SY

Details

AGLC: R v SY [2004] NSWCCA 297
Case: [2004] NSWCCA 297
Decision Date: 30 August 2004

CaseChat Overview and Summary

In this appeal, the defendant, SY, challenged his conviction for multiple charges including murder and attempted murder. The case was heard in the High Court of Australia, which was required to consider whether the trial judge's actions had led to a miscarriage of justice. Specifically, the court examined whether the trial judge's requirement that the Crown call its evidence before the defence did, along with the delay in presenting evidence, contribute to a miscarriage of justice. The adequacy of the trial judge's direction regarding the Longman rule was also in question.

The primary legal issues before the court were whether the trial judge's requirement for the Crown to call its evidence before the defence, combined with a delay in presenting this evidence, constituted a miscarriage of justice. Additionally, the court had to determine whether the trial judge's direction regarding the Longman rule was adequate. The Longman rule pertains to the requirement for the prosecution to call evidence before the defence to ensure a fair trial.

The court found that the trial judge's requirement for the Crown to call its evidence before the defence was not, in and of itself, grounds for a miscarriage of justice. However, when combined with the delay in presenting this evidence, it did contribute to a miscarriage of justice. The court further determined that the trial judge's direction regarding the Longman rule was inadequate, as it did not sufficiently address the implications of the delay in presenting evidence. The combination of these factors led to the conclusion that SY's right to a fair trial was compromised.

Given the findings, the High Court allowed the appeal, quashed the conviction, and ordered a new trial. The court emphasised that the miscarriage of justice was due to the combination of the trial judge's requirement for the Crown to call its evidence before the defence, the delay in presenting this evidence, and the inadequate Longman direction.

Orders