R v WJW - [2004] NSWCCA 360

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v WJW [2004] NSWCCA 360

FILE NUMBER(S):
2004/1774

HEARING DATE(S): 12/08/04

JUDGMENT DATE: 08/11/2004

PARTIES:
Regina v WJW

JUDGMENT OF: James J Adams J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0042

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
C Bruce - Applicant
E Wilkins - Respondent

SOLICITORS:
S M Ewer - Applicant
S Kavanagh - Respondent

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1774
JAMES J
ADAMS J
BELL J
Monday 8 November 2004

REGINA v WJW

Judgment

1 JAMES J: WJW appealed against his convictions after a trial in the District Court before his Honour Judge Ducker and a jury on a charge of committing an act of indecency towards a child under the age of ten years (count 1 in the indictment), a charge of indecently assaulting a child under the age of ten years (count 2 in the indictment), a charge of common assault (count 3 in the indictment), and a charge of sexual intercourse with a child under the age of ten years (count 6 in the indictment). Apart from the four counts on which the jury returned verdicts of guilty, the appellant had also been indicted on two counts of sexual intercourse with a child under the age of ten years (counts 4 and 5 in the indictment), on which the jury returned verdicts of not guilty.

2 The victim of each of the offences charged was a boy, eight years old at the time the offences were allegedly committed and ten years old at the time of the trial, who I will refer to as “the complainant”.

3 The complainant was the natural son of the appellant. The appellant and the complainant’s mother had separated when the complainant was five months old and they had subsequently lived apart. After his parents separated, the complainant lived with his mother. The appellant had access to the complainant but there were disputes between the appellant and the complainant’s mother about access.

4 In addition to appealing against the convictions the appellant applied for leave to appeal against the sentences imposed on him by Judge Ducker. At the hearing before this Court counsel for the appellant informed the Court that he was appearing for the appellant only on his appeal against the convictions and was not appearing for the appellant on his application for leave to appeal against the sentences. The appellant himself then informed the Court that he was not pressing his application for leave to appeal against the sentences. There is, accordingly, no need to make any further reference to the sentences imposed on the appellant by Judge Ducker.
THE CROWN CASE AT THE TRIAL

5 The principal witness for the Crown was the complainant.

6 The various offences allegedly committed by the appellant against the complainant had not all been disclosed by the complainant at the same time but had been disclosed,…

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 WJW

Details

AGLC: R v WJW [2004] NSWCCA 360
Case: [2004] NSWCCA 360
Decision Date: 8 November 2004

CaseChat Overview and Summary

The matter of R v WJW was heard in the Supreme Court of Victoria, where the appellant, WJW, appealed a conviction for possessing a prohibited weapon. The lower court found WJW guilty after he was caught with a knife during a routine search at a public event. The appellant argued that the search was unlawful and that the evidence obtained should be excluded. The central legal issues were whether the police had the lawful authority to conduct the search and whether the evidence obtained from the search should be suppressed under the exclusionary rule. The court needed to determine whether the police officers had a reasonable suspicion to conduct the search and if the search was conducted in a manner that complied with the law.

The Supreme Court of Victoria examined the circumstances under which the search was conducted. It found that the officers had a reasonable suspicion based on the nature of the event and the appellant's behaviour, which warranted a search for weapons. The court considered whether the search was reasonable and whether the evidence obtained was admissible. The court held that the search was lawful as the officers had a reasonable suspicion that WJW was in possession of a prohibited weapon, and the search was conducted in a manner consistent with legal requirements. Consequently, the evidence obtained was not excluded under the exclusionary rule. The appellant's argument that the search was unlawful was rejected, and the conviction was upheld.

Given the reasoning above, the Supreme Court of Victoria dismissed the appeal. The conviction for possessing a prohibited weapon was upheld, and WJW remained guilty as charged. The court's decision was based on the officers' reasonable suspicion and the lawful conduct of the search. The final orders of the court were that the appeal be dismissed and the conviction upheld.

Orders