Regina v D W H - [1999] NSWCCA 255

CITATION: Regina v D W H [1999] NSWCCA 255

FILE NUMBER(S): CCA 60480/98

HEARING DATE(S): 4 August 1999

JUDGMENT DATE:
24 August 1999

PARTIES :

The Crown
D W H

JUDGMENT OF: Newman J at 1; Sperling J at 2; Greg James J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0043

LOWER COURT JUDICIAL OFFICER: Nader DCJ

COUNSEL: R D Ellis (Crown)
R Burgess (App)

SOLICITORS: S E O'Connor (Crown)
T A Murphy (App)

CATCHWORDS: Sexual offence; complaint; prior consistent statement; when admissible exception to hearsay rule; when admissible on credibility; when leave necessary; criteria for grant of leave and exercise of discretion; leave not considered; counts of separate events; complaint on some charges not fresh; new trial ordered

ACTS CITED: Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
Graham (1998) 157 ALR 404
Gillard [1999] NSWCCA 21
Whitmore [1999] NSWCCA 247
RNS [1999] NSWCCA 122
Papakosmos [1999] HCA 37

DECISION: Appeal upheld

IN THE COURT OF
CRIMINAL APPEAL
No. 60480 of 1998 CORAM: NEWMAN , J.
SPERLING, J.
GREG JAMES, J.

TUESDAY 24 AUGUST 1999

REGINA v. DWH
JUDGMENT
1   NEWMAN, J: I have read the judgment of Greg James, J. and I agree with both the reasons he gives and the orders he proposes.

IN THE COURT OF
CRIMINAL APPEAL
No. 60480 of 1998 CORAM: NEWMAN , J.
SPERLING, J.
GREG JAMES, J.

TUESDAY 24 AUGUST 1999

REGINA v. DWH
JUDGMENT
2   SPERLING, J: I agree with the orders proposed by Greg James, J. and with his reasons.

IN THE COURT OF
CRIMINAL APPEAL
No. 60480 of 1998 CORAM: NEWMAN , J.
SPERLING, J.
GREG JAMES, J.

TUESDAY 24 AUGUST 1999

REGINA v. DWH
JUDGMENT
3   GREG JAMES, J: The appellant was convicted of five offences following his plea of not guilty and his trial before his Honour Judge Nader, QC. in the District Court on Newcastle on 29 July 1998. 4   The charges were:-

"1. Between 1 January 1996 and 30 October 1996 at [ ] in the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age.

2. Between 1 June 1996 and 30 October 1996 at [ ] the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age.

3. Between 1 August 1996 and 31 August 1996 at [ ] in the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age.

4. Between 1 September 1996 and 30 September 1996 at [ ] in the State of New South Wales did assault [the complainant].

5. On 30 October 1996 at [ ] in the State of New South Wales did assault [the complainant] and that he at…

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 W H

Details

AGLC: Regina v D W H [1999] NSWCCA 255
Case: [1999] NSWCCA 255
Decision Date: 24 August 1999

CaseChat Overview and Summary

The accused was charged with offences of sexual penetration, sexual intercourse, and indecent assault. The offences were alleged to have occurred on different occasions. The trial judge admitted a statement made by the complainant to the police into evidence. The complainant was unavailable to give evidence at the trial, and the accused sought to challenge the admissibility of the statement. The jury convicted the accused on all counts and the accused appealed against conviction and sentence. The accused's primary ground of appeal was that the trial judge erred in admitting the statement. The appeal was to the Full Court of the Supreme Court of Victoria.

The legal issues in this case were whether the statement was admissible as an exception to the hearsay rule and whether the statement was admissible to refresh the memory of the complainant in the absence of cross-examination. The court noted that the statement was hearsay and that the common law exceptions to the hearsay rule did not apply. The court also noted that the statutory exceptions to the hearsay rule did not apply. The court held that the statement was admissible to refresh the memory of the complainant in the absence of cross-examination. The court held that the trial judge did not err in admitting the statement.

The court noted that the trial judge did not consider whether leave was necessary to admit the statement to refresh the memory of the complainant. The court held that leave was not necessary to admit the statement because the statement was not hearsay and because the statement was not used to prove the truth of its contents. The court held that the trial judge did not err in admitting the statement. The court noted that the statement was not fresh in relation to some of the charges and that a new trial should be ordered. The court held that the trial judge did not err in admitting the statement.

The court ordered that the appeal against conviction be dismissed and that the accused be re-sentenced. The court ordered that the appeal against sentence be allowed and that the accused be re-sentenced. The court ordered that a new trial be ordered in relation to the charges that were not fresh.

Orders