Regina v DSA - [1999] NSWCCA 35

CITATION: Regina v DSA [1999] NSWCCA 35

FILE NUMBER(S): CCA 60650/97

HEARING DATE(S): 08/03/99

JUDGMENT DATE:
8 March 1999

PARTIES :

Regina v DSA

JUDGMENT OF: Spigelman CJ at 44; McInerney J at 51; Abadee J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/51/0056

LOWER COURT JUDICIAL OFFICER: Judge Downs

COUNSEL: R. D. Ellis - Crown
S. J. Odgers - Appellant

SOLICITORS: S. E. O'Connor - DPP
Burridge Harris & Flynn - Appellant

CATCHWORDS:

ACTS CITED: ss 6 and 8 Criminal Appeal Act 1912 (NSW)

CASES CITED:
M (1994) 181 CLR 487
Jones v R (1997) 72 ALJR 78
R v Johnston (CCA 31 July 1998
unreported)
Davies & Cody v The King (1937) 57 CLR 70
Gipp v The Queen (1988) 72 ALJR 1012 at 1016
Fleming v The Queen (1998) HCA 68
158 ALR 382
72 ALJR 1

DECISION: Conviction quashed; ; The appeal to this court should be allowed and in the exercise of the discretion the Court should not order a new trial but direct the entry of a verdict of acquittal on the first count

THE COURT
OF CRIMINAL APPEAL

60650/97

SPIGELMAN CJ
McINERNEY J
ABADEE J
MONDAY 8 March 1999

REGINA v D S A

JUDGMENT
1 SPIGELMAN CJ: I will invite Abadee J to give the first judgment.
2 ABADEE J: The appellant was charged with three counts of carnal knowledge with his sister between 25 January 1974 and 28 February 1975. The appellant pleaded not guilty to each count. His trial commenced on 14 October 1997. On 16 October 1997 a directed verdict in respect of the second count was entered. On 17 October 1997 the appellant was found guilty in respect of count one and not guilty in respect of count three.
3 The events the subject of the three counts were alleged to have occurred in a short time frame and, indeed, within a few days of each other.
4 The complainant, the sister of the appellant was born on 13 February 1960 and the appellant was born on 14 December 1953. Thus the alleged offences occurred when she was thirteen to fourteen and he was twenty to twenty-one years of age.
5 The Crown case may be summarised as follows. The complainant was the third youngest of eight siblings. When she was aged thirteen years of age and residing at the family home she attempted suicide by taking prescription tablets belonging to her mother and father. Her evidence was that she was having some problems which were not identified or specified in the evidence. The Crown case was that at that time the appellant was allegedly on leave from the Army, at home and that he assisted his mother in taking his sister to the hospital.
6 The Crown claimed evidence was given that a couple of months later when the appellant next visited he and the complainant became close. The complainant ran away from home for a period of some thirteen days towards…

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 DSA

Details

AGLC: Regina v DSA [1999] NSWCCA 35
Case: [1999] NSWCCA 35
Decision Date: 8 March 1999

CaseChat Overview and Summary

The case of Regina v DSA involved an appeal against a conviction for carnal knowledge with a sister between 25 January 1974 and 28 February 1975. The appellant was found guilty of the first count but not guilty of the third count. The legal issues before the court were whether the trial judge misdirected the jury regarding corroboration, whether the conviction was unsafe and unsatisfactory, and whether the court should order a new trial or direct a verdict of acquittal.

The court found that the trial judge's directions regarding corroboration were erroneous as the appellant's account could not be regarded as corroborative of the complainant's account. Additionally, the inconsistency between the findings on the first and third counts led to the conclusion that the conviction on the first count was unsafe and unsatisfactory. The court held that the appropriate course was to quash the conviction and direct a verdict of acquittal on the first count, rather than ordering a new trial.

The reasoning of the court was based on the lack of corroboration, the inconsistency in the jury's findings, and the potential for unfairness in ordering a new trial for a single count. The orders of the court were to quash the conviction and direct a verdict of acquittal on the first count.

Orders