Regina v D.R.E - [2004] NSWCCA 305

CITATION: Regina v D.R.E [2004] NSWCCA 305

HEARING DATE(S): 31 August 2004

JUDGMENT DATE:
2 September 2004

JUDGMENT OF: Mason P at 1; Sully J at 2; Sperling J at 22

DECISION: (1) Appeals against conviction upheld; (2) Current convictions and sentences quashed; (3) Order a new trial

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)

CASES CITED: M v The Queen (1994) 181 CLR 487
R v McKnoulty (1994) 77 A Crim R 333 at 338

PARTIES :
Regina
D.R.E

FILE NUMBER(S): CCA 2004/1902

COUNSEL: P. Ingram - Crown
R. Hulme SC - Appellant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/51/0154

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

2004/1902

MASON P
SULLY J
SPERLING J
2 September 2004

REGINA v D.R.E

Judgment

1 MASON P: I agree with Sully J.

2 SULLY J: In July and August 2003 the appellant stood trial in the District Court before his Honour Judge Garling and a jury and upon an indictment containing five counts. The first count alleged a common assault upon a particular named complainant. The second count alleged an aggravated indecent assault upon the same complainant. The third and fourth counts each alleged sexual intercourse with that complainant, he being a child then under the age of 10 years. The fifth count alleged an attempted aggravated indecent assault upon the same complainant.

3 The jury found the appellant guilty as charged upon each count in the indictment. He was sentenced subsequently to substantial periods of imprisonment. The appellant now appeals against his convictions. He does not apply for leave to appeal against the sentences passed upon him, and no more need be said about those sentences.

4 Five grounds of appeal were notified. They are:

“ [1] The trial miscarried by his Honour admitting evidence of sexual activity between the appellant, the complainant and ………… (a minor, DB).

[2] The trial miscarried by his Honour directing the jury that, if they were satisfied beyond reasonable doubt of the appellant’s guilt in relation to count 4, they could use that as evidence of sexual intent in relation to the other charges to dispel any doubt they may have had that the accused is the type of person who may not have had sexual interest in the complainant.

[3] The trial miscarried as a result of the failure of the trial Judge adequately to direct the jury in relation to the significance of delay in complaint.

[4] The trial miscarried because of comments made by the Crown Prosecutor in his address to the jury in relation to the motive that …. (the complainant’s sister) … .. had for disliking the appellant.

[5] The verdicts are unreasonable and cannot be supported by the evidence.”

5 Prior to the hearing of…

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 Regina v D.R.E

Details

AGLC: Regina v D.R.E [2004] NSWCCA 305
Case: [2004] NSWCCA 305
Decision Date: 2 September 2004

CaseChat Overview and Summary

Regina v D.R.E is a case involving an appeal against convictions by D.R.E, who was found guilty in the District Court on five counts of sexual assault against a child under the age of 10. The case was heard in the New South Wales Court of Criminal Appeal by Mason P, Sully J, and Sperling J on 31 August 2004, with the judgment delivered on 2 September 2004. The appeal was against the convictions, not the sentences. The legal issues before the court were whether the trial had miscarried due to the admission of certain evidence, the direction given to the jury, the failure to adequately address the delay in complaint, and comments made by the Crown Prosecutor, as well as whether the verdicts were unreasonable and unsupported by the evidence.

The court examined each ground of appeal, finding that the first four grounds were well-founded, leading to a miscarriage of justice. However, the fifth ground, concerning the unreasonableness of the verdicts, was not upheld. The court emphasised that while the jury's role as the sole arbiter of fact was paramount, the discrepancies and inconsistencies in the complainant's evidence, coupled with the appellant's straightforward denial, should have led the jury to entertain reasonable doubt. The jury's advantage in seeing and hearing the complainant did not sufficiently explain their acceptance of the evidence despite its flaws. The court concluded that the appellant's appeal against conviction should be upheld, the current convictions and sentences quashed, and a new trial ordered.

Orders