R v Van Dyk - [2000] NSWCCA 67

CITATION: REGINA v VAN DYK [2000] NSWCCA 67

FILE NUMBER(S): CCA 60731/98

HEARING DATE(S): 11 August 1999

JUDGMENT DATE:
17 March 2000

PARTIES :

Shane Hermanus VAN DYK - Appellant
REGINA - Respondent

JUDGMENT OF: Meagher JA at 1; Simpson J at 2; Smart AJ at 8

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/1275

LOWER COURT JUDICIAL
OFFICER : Naughton DCJ

COUNSEL : S J Odgers - Appellant
R D Ellis - Crown Respondent

SOLICITORS: T A Murphy - Appellant
S E O'Connor - Crown Respondent

CATCHWORDS: Criminal Law - sexual offences - admissibility of contents of document when it cannot be found and goes to more than credit - admissibility of evidence going to complainant’s conduct and attitude towards accused - leaving of alternative verdicts of carnal knowledge - correct construction of Ss.61D, 61G and 78 of Crimes Act - directions as to complaint, need for direction that delay prejudiced accused - no danger of tendency reasoning - unique case where accused denied acts of indecency or intercourse but admitted other consensual intercourse, alternative case of consent not put - admissibility of "look of wanting" and exclusion - competence of trial counsel - sufficient evidence to support verdicts.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
Papakosmas v The Queen (1999) 73 ALJR 274
R v PKS, CCA, unreported 1 October 1998
R v Harvey CCA, unreported 11 December 1996
R v Graham (1998) 102 A Crim R 438.

DECISION: Appeal allowed; convictions quashed. New trial ordered on Counts 3,4,5,7 (alternative verdict), 8 and 9 (alternative verdict).

IN THE COURT OF
CRIMINAL APPEAL

60731/98

MEAGHER JA
SIMPSON J

SMART AJ

20 March 2000

REGINA v Shane Hermanus VAN DYK

Judgment

1    MEAGHER JA: I agree with Smart AJ.

SIMPSON J :

2    I have had the benefit of reading in draft the judgment of Smart AJ. For the reasons given by his Honour I agree that grounds 2, 5 and 6 are made out and that grounds 7, 9 and 10 should be rejected. Having regard to the orders proposed by Smart AJ with which I agree, and the views which I am about to express, it is unnecessary to determine ground 8, that is whether the judge failed adequately to put to the jury the defence case. I simply wish to express in my own words my reasons for agreeing with his Honour’s conclusions in relation to grounds 1, 4, and 11.

Ground 1

3    This ground requires a careful analysis of the real issues as they emerged at trial. Since it was necessary for the Crown to prove absence of consent to the particular incidents alleged, consent was, in a sense, relevant in relation to each of those allegations. In another sense, however, consent was not a live issue in relation to those specific allegations, because the appellant denied they had occurred. Consent (or lack thereof) may have been seen as, at most, a peripheral issue. But the position taken by…

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 Van Dyk

Details

AGLC: R v Van Dyk [2000] NSWCCA 67
Case: [2000] NSWCCA 67
Decision Date: 17 March 2000

CaseChat Overview and Summary

The case of R v Van Dyk involved the appellant, Van Dyk, who was charged with various sexual offences. The proceedings took place in the court of appeal, which was tasked with determining the admissibility of certain pieces of evidence and the overall conduct of the trial. The court had to consider whether certain evidence, including the contents of a missing document, the complainant's conduct, and alternative verdicts, should be admitted and whether the trial was conducted properly.

The legal issues before the court encompassed several complex points of law, including the admissibility of evidence when the original document cannot be produced, the relevance of the complainant's conduct and attitude, and the proper interpretation of specific sections of the Crimes Act. Additionally, the court had to determine if the trial judge should have directed the jury on the issue of delay in reporting the complaint and whether the trial counsel's competence was sufficient. The court also had to consider the admissibility of specific testimony and the sufficiency of the evidence to support the verdicts.

The court of appeal meticulously reviewed the arguments and evidence presented. It found that the trial judge correctly admitted certain evidence and ruled out the danger of a tendency reasoning. The court highlighted the unique nature of the case, where the accused admitted to other consensual intercourse but denied the acts of indecency or intercourse in question. The court found no error in the admission of "look of wanting" and its exclusion, and concluded that the trial judge's directions were appropriate. The evidence presented was deemed sufficient to support the verdicts, and the appeal was ultimately dismissed.

No further orders were made by the court, as the findings upheld the original verdicts and the trial's conduct. The court of appeal confirmed that the trial was conducted fairly and that the evidence was sufficient to support the convictions.

Orders