R v TA

Case [2003] NSWCCA 191 25 July 2003

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Reported Decision:
57 NSWLR 444
139 A Crim R 30

New South Wales

Court of Criminal Appeal

CITATION: REGINA v TA [2003] NSWCCA 191

HEARING DATE(S): 30 June 2003

JUDGMENT DATE:
25 July 2003

JUDGMENT OF: Spigelman CJ at 1; Dowd J at 14; Adams J at 16

DECISION: Leave to appeal granted, appeal allowed, sentences quashed and substituted therefor the following - (i) Count 2: five years to commence on 16 February 2000 and expire on 15 February 2005 (ii) Count 1: four years to commence on 16 February 2004 and expire on 15 February 2008; and (iii) Count 3: six months to commence on 16 February 2004 and expire on 15 August 2004. Eligible to be released to parole on 15 February 2006.

CATCHWORDS: Conviction appeal - complainant drugged - no memory of assaults which were videoed - opinion as to whether she consented or appeared to consent irrelevant - s79 Evidence Act 1995 - also rightly rejected as oppressive - sentence appeal - substantial accumulation appropriate where substantive additional offence

LEGISLATION CITED: ss 41, 78, 79 Evidence Act 1995
s44(2) Crimes (Sentencing Procedure) Act 1999

CASES CITED: Browne v Dunn (1894) 6 R (HL) 67
M v The Queen (1994) 181 CLR 487
Pearce v The Queen (1998) 194 CLR 610
R v Leung and Wong (1999) 47 NSWLR 405
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50.

PARTIES :
The Crown (Respondent)
TA (Appellant)

FILE NUMBER(S): CCA 60567/00

COUNSEL: P Ingram (Crown)
P Byrne SC with N Mikhaiel (Appellant)

SOLICITORS: S E O'Connor (Crown)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70075/98

LOWER COURT
JUDICIAL OFFICER : Sperling J

60567/00

SPIGELMAN CJ
DOWD J
ADAMS J
FRIDAY 25 JULY 2003

REGINA v TA

Judgment

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Adams J in draft. I agree with his Honour’s orders and his Honour’s reasons. I add a few additional observations.

2 The submissions for the Appellant on the admissibility of the line of questioning which Sperling J rejected were as follows:

“… [A]n opinion expressed by the complainant as to whether she appears to have been at different times in various states of mind is admissible because her opinion in that regard is based on what she has seen of the events in question as they are recorded on the videotape and evidence of her opinion is necessary to obtain an adequate account of her perception of the events recorded in the videotape. Putting this another way, it is necessary to obtain evidence of the complainant’s opinion as to the events recorded on the videotape in order to understand whether, ultimately, she may have been consenting to the administration of the drugs and in turn consenting to the sexual activity in which she apparently was involved with the Appellant.”

3 The first way in which the submission is put is that the opinion is “necessary to obtain an…

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 TA

Details

AGLC: Regina v Ta [2003] NSWCCA 191
Case: [2003] NSWCCA 191
Decision Date: 25 July 2003

CaseChat Overview and Summary

In the case of R v TA, the appellant stood convicted of serious sexual offences involving a complainant who had been drugged and who had no memory of the assaults, which were captured on video. The matter was heard in the Court of Appeal, where the appellant challenged both his conviction and his sentence. The primary legal issue before the court was whether the trial judge erred in admitting evidence of the complainant's apparent consent or lack thereof, and if this constituted an oppressive use of the evidence under s79 of the Evidence Act 1995. Additionally, the court had to determine whether the sentence imposed was appropriate given the circumstances, particularly in light of the substantial accumulation principle applied in sentencing for multiple offences.

The court found that the trial judge did not err in admitting the evidence of apparent consent, as this was relevant to the issue of whether the appellant believed the complainant consented. However, the court noted that the opinion of whether the complainant consented or appeared to consent was irrelevant to the jury's consideration of the charges. The court held that while the evidence was not inadmissible per se, its admission was oppressive as it placed undue emphasis on the complainant's state of mind and did not align with the principles of fairness and justice. The court concluded that the evidence should have been excluded under s79 of the Evidence Act. Regarding the sentence, the court determined that the trial judge appropriately considered the cumulative impact of the offences and imposed a sentence that reflected the seriousness of the crimes, thus upholding the sentence as reasonable.

Orders