R v YY No. 1 - [2016] NSWDC 362

District Court

New South Wales

Medium Neutral Citation: R v YY No. 1 [2016] NSWDC 362
Hearing dates: 4 October 2016 to 10 October 2016
Date of orders: 19 October 2016
Decision date: 19 October 2016
Jurisdiction: Criminal
Before: A Haesler SC DCJ
Decision:
GUILTY - s 61M(2) x 8 - counts 1,2,3,4,6,8,9,13
GUILTY - s 61O(2) x 2 - counts 5,7
GUILTY - s 66C(2) x 2 - counts 11,12
NOT GUILTY - s66C(2) x 1 - Count 10

Catchwords: Judge Alone Trial; sexual intercourse child; Acts of indecency toward child; indecent assault; grandfather; tendency; general admissions; exculpatory ERISP; accused silence; delay; no concoction; good character; compelling account by complainant.
Legislation Cited: s 61M(2); s 61O(2); s 66C(2 Crimes Act 1900
s 294 Criminal Procedure Act 1986
s 144; s 165B Evidence Act 1995
Cases Cited: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
IMM v The Queen [2016] HCA 14
Longman v The Queen (1989) 169 CLR 79
Category: Principal judgment
Parties: YY (accused)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr M Fox (for the ODPP)
Ms C Davenport (for the accused)
Solicitors:
Ms M Aresh (ODPP)
Ms J Hall (for the accused)

File Number(s): 2015/87400
Publication restriction: The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

Judgment

INTRODUCTION

A person accused of a serious crime can, after receiving legal advice, waive their right to a trial by jury and elect for a trial by judge alone. YY made such an election. The Director of Public Prosecutions consented to that course.
On 4 October 2016 an Indictment was presented at Wollongong District Court containing 13 Counts. The offences are said to have occurred at Berkeley, Warrawong and Kembla Grange. The complainant, AA, was born on 21 November 1996. The accused is her maternal grandfather.
Counts 1, 2, 3 & 4 allege that the accused assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her. The offences are said to have occurred between 21 May 2004 and 21 November 2005: s 61M(2) Crimes Act 1900.
Count 5 alleges the accused committed an act of indecency on AA then a child aged 8 - 9, during the period 20 November 2004 to 21 November 2006: s 61O(2) Crimes Act 1900.
Count 6 alleges that the accused assaulted AA then a child aged 9, and at the same time committed an act of indecency on her. The offence is said to have occurred between 20 November 2005 and 21 November 2006: s 61M(2) Crimes Act 1900.
Count 7 alleges the accused committed an act of indecency on AA, then a child…

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.

Keep reading for free

Create a free CaseChat account to read R v YY No. 1 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWDC 362
Decision Date: 19 October 2016

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus YY, the appellant was convicted on multiple counts of sexual offences involving a child. The case was heard in the County Court of Victoria, presided over by a judge sitting alone. The appellant was charged with various offences, including sexual intercourse with a child, acts of indecency towards a child, and indecent assault, all of which occurred when the victim was under the age of 16. The complainant in the case was the appellant's granddaughter, and the offences were alleged to have taken place over a period of time.

The court had to decide on several legal issues, including whether the appellant's silence in the face of allegations was a factor that could be taken into account when assessing his credibility. The court also had to consider whether the delay in reporting the offences was a factor that could be taken into account when assessing the reliability of the complainant's evidence. Additionally, the court had to consider whether the appellant's good character was a relevant factor in assessing his credibility and whether the complainant's account was compelling enough to warrant a conviction.

The court found that the complainant's evidence was compelling and that the appellant's silence and delay in reporting the offences did not necessarily undermine the reliability of her account. The court also found that the appellant's good character was not a relevant factor in assessing his credibility, and that the complainant's account was sufficiently compelling to warrant a conviction on multiple counts. The court found the appellant guilty on eight counts of sexual intercourse with a child, two counts of acts of indecency towards a child, two counts of indecent assault, and not guilty on one count of indecent assault.

The court ordered that the appellant be sentenced on the eight counts of sexual intercourse with a child, two counts of acts of indecency towards a child, and two counts of indecent assault. The court found that the offences were of a serious nature and that the appellant's lack of remorse and denial of the offences were aggravating factors. The court also found that the appellant's good character was a mitigating factor, but that it was outweighed by the seriousness of the offences and the appellant's lack of remorse. The court ordered that the appellant be sentenced to a term of imprisonment, with a non-parole period of eight years.

Orders

Orders of the court

GUILTY - s 61M(2) x 8 - counts 1,2,3,4,6,8,9,13

GUILTY - s 61O(2) x 2 - counts 5,7

GUILTY - s 66C(2) x 2 - counts 11,12

NOT GUILTY - s66C(2) x 1 - Count 10

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v YY No. 1 [2016] NSWDC 362
Hearing dates:	4 October 2016 to 10 October 2016
Date of orders:	19 October 2016
Decision date:	19 October 2016
Jurisdiction:	Criminal
Before:	A Haesler SC DCJ
Decision:	GUILTY - s 61M(2) x 8 - counts 1,2,3,4,6,8,9,13 GUILTY - s 61O(2) x 2 - counts 5,7 GUILTY - s 66C(2) x 2 - counts 11,12 NOT GUILTY - s66C(2) x 1 - Count 10
Catchwords:	Judge Alone Trial; sexual intercourse child; Acts of indecency toward child; indecent assault; grandfather; tendency; general admissions; exculpatory ERISP; accused silence; delay; no concoction; good character; compelling account by complainant.
Legislation Cited:	s 61M(2); s 61O(2); s 66C(2 Crimes Act 1900 s 294 Criminal Procedure Act 1986 s 144; s 165B Evidence Act 1995
Cases Cited:	Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 IMM v The Queen [2016] HCA 14 Longman v The Queen (1989) 169 CLR 79
Category:	Principal judgment
Parties:	YY (accused) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr M Fox (for the ODPP) Ms C Davenport (for the accused) Solicitors: Ms M Aresh (ODPP) Ms J Hall (for the accused)
File Number(s):	2015/87400
Publication restriction:	The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.