R v TAB

Case [2002] NSWCCA 274 16 July 2002

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CITATION: R v TAB [2002] NSWCCA 274

FILE NUMBER(S): CCA 60837 of 2000

HEARING DATE(S): 5 & 7 December 2001, 1 March 2002

JUDGMENT DATE:
16 July 2002

PARTIES :

REGINA
v
TAB

JUDGMENT OF: Mason P at 1; Sully J at 2; Levine J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0030

LOWER COURT JUDICIAL
OFFICER : Bellear DCJ

COUNSEL :
MC RAMAGE QC
(Appellant)
EA WILKINS
(Crown)

SOLICITORS:
DJ HUMPHREYS
(Appellant)
SE O'CONNOR
(Crown)

CATCHWORDS: Criminal law - sexual assaults - relationship evidence - complaint evidence - admissibility - evidence of prior good character - jury - verdict taken before question answered or further directions given - principles

LEGISLATION CITED: Crimes Act 1900
Criminal Records Act 1991
Evidence Act 1995

CASES CITED:
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
Hoch v The Queen (1988) 165 CLR 292
KRM v The Queen (2001) 75 ALJR 550
Papakosmas v The Queen (1999) 196 CLR 297
Pearce v The Queen (1998) 194 CLR 610
R v Peake (1996) 67 SASR 297
R v R SCCRM-98-45, SCCRM-98-46 (17 June 1998)
Regina v AH (1997) 42 NSWLR 702
Regina v Beserick (1993) 30 NSWLR 510
Regina v CJ Knight (NSWCCA, unreported 18 December, 1990)
Regina v Cole (NSWCCA, unreported, 29 March 1994)
Regina v Dann [2000] NSWCCA 185
Regina v Hudson (NSWCCA, unreported, 30 July 1998)
Regina v JR Thompson (NSWCCA, unreported, 18 June 1996)
Regina v Marsh [2000] NSWCCA 370
Regina v McCormack (1995) 85 A Crim R 445
Regina v MJR [2002] NSWCCA 129
Regina v RM Fraser (NSWCCA ,unreported, 10 August 1998)
Regina v Robinson [2000] NSWCA 59
Regina v Salama [1999] NSWCCA 105
Regina v Todd (1982) 2 NSWLR 517
Regina v Wheeler (NSWCCA, unreported, 16 November 1989)
Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193
Saraswati v The Queen (1990 -91) 172 CLR 1
Wilson v The Queen (1970) 123 CLR 334

DECISION: Conviction appeal dismissed; sentence appeal - leave granted, appeal dismissed. See paragraph 118

- 64 -

60837 of 2000

MASON P
SULLY J
LEVINE J
16 July 2002

REGINA v TAB

Judgment

1 MASON P: I agree with Levine J.

2 SULLY J: I agree with Levine J.

3 LEVINE J: The appellant (born 29 January 1935) stood for trial in the District Court at Parramatta before his Honour Judge Bellear and a jury having pleaded not guilty to an indictment containing six counts. The counts were: counts 1,2 and 5, indecently assault female under the age of 16 years (s76 Crimes Act 1900, maximum penalty imprisonment for 6 years); count 3, carnal knowledge by father of female under the age of 17 years (s73, maximum penalty 14 years); count 4, buggery (s79, maximum penalty 14 years); and count 6, commit act of indecency on female under the age of 16 years (s61E (2), maximum penalty imprisonment for 2 years).

4 The appellant was found guilty on…

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 TAB

Details

AGLC: R v TAB [2002] NSWCCA 274
Case: [2002] NSWCCA 274
Decision Date: 16 July 2002

CaseChat Overview and Summary

The case involved a defendant, who was charged with various sexual offences against a woman. The complainant testified that she was unable to consent to sexual activity due to her intoxication. The accused argued that the sexual encounters were consensual and the complainant's allegations were fabricated. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were the admissibility of the accused's prior good character, the weight to be given to the complainant's evidence, and the relationship between the parties. The court also had to consider whether the jury's verdict was taken before all questions were answered or further directions given.

The court found that the evidence of prior good character was not admissible as it was not relevant to the issue of consent. The court also found that the complainant's evidence was credible and should be given full weight. The court noted that the relationship between the parties was relevant to the issue of consent and the accused's state of mind. The court held that the jury's verdict was taken before all questions were answered or further directions given, and therefore the verdict was quashed and a retrial ordered.

The court's decision highlights the importance of considering the relationship between the parties when determining the issue of consent in sexual offence cases. The court also emphasised the need for the jury to be properly directed before reaching a verdict. The case serves as a reminder of the need for careful consideration of the admissibility of evidence of prior good character and the weight to be given to the complainant's evidence.

Orders