Regina v DJT - [1999] NSWCCA 22

CITATION: Regina v DJT [1999] NSWCCA 22

FILE NUMBER(S): CCA 60387/98

HEARING DATE(S): 24/2/99

JUDGMENT DATE:
24 February 1999

PARTIES :

Regina v DJT

JUDGMENT OF: Spigelman CJ at 52; Wood CJatCL at 53; McInerney J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Howie DCJ

COUNSEL: C.K. Maxwell QC (Crown)
G.J. Graham ( Appellant)

SOLICITORS: S.E. O'Connor (DPP)
Braye Cragg (Appellant)

CATCHWORDS:

DECISION: Conviction with respect to count 5 quashed. ; Otherwise appeal dismissed.

21
IN THE COURT OF
CRIMINAL APPEAL
60387/98
SPIGELMAN CJ
WOOD CJ at CL
McINERNEY J

Wednesday, 24 February 1999
REGINA v DJT
JUDGMENT
1 McINERNEY J: The appellant appeals his conviction by a jury of three out of five charges with which he was indicted. The charges were: (1) indecent assault of a female under sixteen years between 1 November 1978 and 31 December 1978; (2) indecent assault of a female under sixteen years between 1 January 1980 and 15 January 1980; (3) use offensive weapon, a firearm, with intent to commit assault; (4) carnal knowledge of a stepdaughter between 1 January 1983 and 31 December 1983; and (5) indecent assault between 1 January 1984 and 31 December 1984 of a female under the age of sixteen years.
2 The jury convicted the appellant of counts 1, 2 and 5 and found him not guilty of counts 3 and 4.
3 The facts shortly are that the complainant, a young girl at the time, was born on 13 February 1970. Her mother and father separated when she was about two years old, and her mother then began a relationship with the appellant. When the complainant was five years old she and her mother and the appellant moved to an address at Holmesville.
4 The evidence from the complainant was that when she was about five years old the appellant began to enter her room late at night. Sometimes he would touch her on the vagina, sometimes he would lie naked on top of her and rub his body against her body and ejaculate and on other occasions she would have to perform fellatio.
5 The complainant gave evidence that such events took place close to four or five times a week. She also gave evidence that the appellant told her not to tell anybody, he threatened to kill her or her mother, she would be taken away and she would be in trouble. The appellant owned a shotgun, and the complainant gave evidence that he used the gun to scare her. He was found not guilty of that charge.
6 Count 1 related to an incident which occurred when the complainant was eight years old. The appellant had won a scooter in a Christmas raffle and he gave it to her as a present. That night the appellant entered her room and stood beside her bed. He was naked, and asked the complainant to kiss his penis. When the complainant complied with his request he…

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 DJT

Details

AGLC: Regina v DJT [1999] NSWCCA 22
Case: [1999] NSWCCA 22
Decision Date: 24 February 1999

CaseChat Overview and Summary

The appellant, DJT, appealed against his conviction by a jury on three counts of a five count indictment, namely indecent assaults on a female under sixteen years on various dates, and an indecent assault on a female under sixteen years between 1 January 1984 and 31 December 1984. The appellant was acquitted of charges relating to an incident involving a firearm and an incident of carnal knowledge. The Court of Criminal Appeal was required to determine whether the convictions were supported by the evidence, whether the evidence of the complainant was admissible, and whether the verdicts were inconsistent. The Court considered the nature of the evidence, the admissibility of the prior consistent statements, and the consistency of the jury's verdicts.

The Court found that the conviction with respect to count 5 should be quashed as it was brought outside the limitation period. The Court found that the evidence of the complainant was admissible as it was led in reply to suggestions that her evidence had been fabricated. The Court also found that the jury's verdicts were not inconsistent as the jury had been directed to consider each count separately and could have had reasonable doubts about the timing and nature of the alleged offences. The Court held that there was no basis to interfere with the jury's verdicts on counts 1 and 2.

The Court ordered that the conviction with respect to count 5 be quashed, and otherwise dismissed the appeal.

Orders