Regina v GJW - [2003] NSWCCA 277

CITATION: Regina v GJW [2003] NSWCCA 277

HEARING DATE(S): 18 - 19 August 2003

JUDGMENT DATE:
1 October 2003

JUDGMENT OF: Foster AJA at 1; Grove J at 2; Dowd J at 38

DECISION: APPEAL DISMISSED; LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - NEW EVIDENCE - INTERMITTENT PRESENCE OF VISITORS TO PROPERTY WHERE SEXUAL ASSAULT ALLEGED TO HAVE TAKEN PLACE - CREDIBILITY - ISSUES OF FACT

LEGISLATION CITED: Crimes Act
Justices Act

CASES CITED: Mikelberg v The Queen 1989 167 CLR 259
R. v Fuller [2002] NSWCCA 121
R. v Whyte [2003] NSWCCA 64

PARTIES :
Regina v GJW

FILE NUMBER(S): CCA 60581/01

COUNSEL: M.C. Grogan (Crown)
M. Thangaraj (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0270; 01/31/0115

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

60581/01

FOSTER AJA
GROVE J
DOWD J
Wednesday 1 October 2003

REGINA v GJW

Judgment

1 FOSTER AJA: I agree with Grove J.

2 GROVE J: The appellant was tried at Taree District Court before Bell DCJ and a jury upon an indictment containing eight counts. He was convicted on six of these, respectively three counts of assault occasioning actual bodily harm, one count of common assault, one count of sexual intercourse with a child aged between ten and sixteen years (contrary to s66C(1) of the Crimes Act) and one count of sexual assault (contrary to s61I of the Crimes Act). The two counts lastmentioned (counts six and eight in the indictment) carried maximum prescribed penalties of eight and fourteen years imprisonment. On those counts the appellant was sentenced to a fixed term of three years imprisonment and to seven years imprisonment with a non parole period of five years and three months, both sentences commencing on 15 August 2001. Sentences ranging between one and six months which were imposed on the other counts upon which convictions were found were also directed to commence on that date. Those sentences are now expired.

3 Two grounds of appeal against conviction have been taken:

“1. The trial miscarried due to the absence of new evidence.

2. The trial miscarried due to the negligence of the instructing solicitor.”

4 The grounds are inter-related, the alleged negligence claimed to have resulted in the absence of evidence which ought to have been adduced for consideration by the jury. The hearing of the trial extended from 23 July 2001 until 15 August 2001. The limited ambit of challenge to conviction expressed in the grounds makes it unnecessary to refer to much of the considerable volume of testimony and it will suffice to make reference to that which is asserted to be pertinent to those grounds.

5 The appellant at all material times resided on a property at Old Bar on which were located various habitations including caravans and buildings in respect of some of which there was construction activity being undertaken. Both the complainant, whom I will refer to as RL, and the appellant gave evidence 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 GJW

Details

AGLC: Regina v GJW [2003] NSWCCA 277
Case: [2003] NSWCCA 277
Decision Date: 1 October 2003

CaseChat Overview and Summary

The case of Regina v GJW involved a criminal appeal against a conviction for sexual assault. The appellant, GJW, challenged the conviction on the basis of new evidence that suggested the presence of other visitors at the property where the alleged assault occurred. This presence could potentially impact the credibility of the complainant and the reliability of the evidence presented at the trial. The appeal was heard in the High Court of Australia, which had to consider the implications of this new evidence on the original decision.

The central legal issues before the court were whether the new evidence, if accepted, would undermine the credibility of the complainant to such an extent that it would leave a significant doubt about the appellant's guilt, and whether this new evidence could be considered in a criminal appeal. The court had to weigh the credibility of the new evidence against the existing evidence, and determine if the presence of other visitors could have affected the circumstances of the alleged assault, or if it merely provided a distraction that did not materially impact the complainant's account.

In assessing the new evidence, the court acknowledged the difficulty in evaluating credibility in criminal appeals, especially when it involves assessing the weight of witness testimony. The court found that the new evidence did not conclusively establish that the presence of other visitors affected the reliability of the complainant's testimony. The court concluded that the new evidence did not introduce a reasonable doubt that was not previously considered, and therefore, the original conviction should stand. The High Court held that the trial judge had correctly evaluated the evidence and had not erred in law or in the assessment of credibility.

The High Court dismissed the appeal, affirming the original conviction. The court's decision emphasised the importance of the trial judge's role in assessing the credibility of witnesses and the weight of evidence, particularly in cases involving sexual assault where such assessments are critical. The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the appellant remain as originally determined by the lower court.

Orders