R v WRW - [2001] NSWCCA 466

CITATION: R v WRW [2001] NSWCCA 466

FILE NUMBER(S): CCA 60080/00

HEARING DATE(S): 3 August 2001

JUDGMENT DATE:
26 November 2001

PARTIES :

Regina v WRW

JUDGMENT OF: Heydon JA at 1; Simpson J at 80; Smart AJ at 81

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/51/0039

LOWER COURT JUDICIAL
OFFICER : Tupman DCJ

COUNSEL : Mr M C Grogan (Crown)
Mr C J Bruce (Appellant)

SOLICITORS: S E O'Connor (Crown)
Michael Dennis (Appellant)

CATCHWORDS: Criminal Law - Sexual assault - Evidence - Complaint evidence - 'Credibility rule' - Whether trial judge erred in allowing and not striking out evidence of complainant regarding reason for delay in complaint - Whether trial judge erred in failing to exclude complainant's evidence regarding belief that appellant having affair with his sister-in-law - Evidence Act 1995, ss 55, 102, 108, 135 - Criminal Law - Sexual assault - Significance of factual error in Crown prosecutor's cross-examination of appellant - Whether factual error misleading - Whether caused miscarriage of justice - Criminal Law - Sexual assault - Multiple counts - Mixture of acquittals and convictions - Whether guilty verdicts unreasonable and not supported by evidence - Credibility of complainant - Whether necessity for direction that doubts about credibility re one or more counts must affect assessment of credibility generally - ND

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
R v Carbone (2000) NSWCCA 387
Jones v R (1997) 191 CLR 439
R v Markuleski [2001] NSWCCA 290

DECISION: Appeal against conviction dismissed.

60080/00

HEYDON JA

SIMPSON J

SMART AJ

26 November 2001

REGINA v WRW

Judgment

1 HEYDON JA

: The appellant appeals against his conviction by a jury after a trial presided over by Tupman DCJ of one count of rape (the fourth on the indictment) and one of indecent assault (the fifth on the indictment).

2 The indictment charged him with four counts of rape and one of indecent assault; in relation to each of the rape counts he was charged in the alternative with unlawful carnal knowledge. The alleged victim was his stepdaughter.

3 The indictment took the following form:

“On 8th of November 2000, the Director of Public Prosecutions on behalf of Her Majesty charges that

[the appellant]

1. between the 15 July 1972 and 15 October 1972 at Nulkaba in the State of New South Wales, did without her consent, ravish and carnally know [the complainant].

AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES IN THE ALTERNATIVE THAT

[the appellant]

1. between the 15 July 1972 and 15 October 1972 at Nulkaba in the State of New South Wales, being the stepfather of [the complainant], did unlawfully and carnally know [the complainant] she being a girl above the age of 10 years and under 17 years, namely 10 or 11 years of age.

AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT

[the appellant]

2. between 15 September 1973 and 15 October 1973, at Nulkaba in the State of New South Wales, did without her consent,…

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 WRW

Details

AGLC: R v WRW [2001] NSWCCA 466
Case: [2001] NSWCCA 466
Decision Date: 26 November 2001

CaseChat Overview and Summary

In the matter of R v WRW, the appellant, WRW, was convicted of multiple counts of sexual assault against ND, the complainant, but acquitted on other counts. ND was the appellant's niece, and the events in question occurred over a period of time. The dispute centred around the admissibility of certain evidence and the credibility of the complainant. The High Court of Australia was tasked with determining whether the trial judge made any errors in allowing or excluding evidence, and whether the guilty verdicts were unreasonable or unsupported by the evidence.

The legal issues before the Court were whether the trial judge erred in permitting ND's evidence about her reasons for the delay in reporting the assaults, and about her belief that the appellant was having an affair with his sister-in-law. The Court was also required to determine whether a factual error in the Crown prosecutor's cross-examination of the appellant misled the jury and caused a miscarriage of justice. Furthermore, the Court had to consider whether the guilty verdicts were unreasonable and not supported by the evidence, particularly in light of the mixture of acquittals and convictions.

The Court found that the trial judge did not err in allowing ND's evidence regarding her reasons for the delay in reporting the assaults, as it was relevant to her credibility. However, the Court held that the trial judge should have excluded ND's evidence about her belief that the appellant was having an affair with his sister-in-law, as it was not relevant to the charges and could have been prejudicial. The Court concluded that the factual error in the Crown prosecutor's cross-examination did not mislead the jury or cause a miscarriage of justice, as the error was minor and did not impact the overall fairness of the trial. Finally, the Court found that the guilty verdicts were not unreasonable or unsupported by the evidence, as there was sufficient evidence to support the jury's assessment of ND's credibility and the appellant's guilt.

In light of the findings, the High Court of Australia dismissed the appeal and upheld the convictions. The Court held that the trial judge's errors did not affect the overall fairness of the trial, and that the guilty verdicts were supported by the evidence. The Court did not find any miscarriage of justice, and therefore, the convictions were upheld.

Orders