Regina v Kg - [2001] NSWCCA 510

Reported Decision:
54 NSWLR 198
129 A Crim R 42

New South Wales

Court of Criminal Appeal

CITATION: Regina v KG [2001] NSWCCA 510

FILE NUMBER(S): CCA 60144/00

HEARING DATE(S): 12 September 2000; 15 June 2001

JUDGMENT DATE:
12 December 2001

PARTIES :

Regina v KG

JUDGMENT OF: Priestley JA at 1; Greg James J at 40; Kirby J at 41

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0092

LOWER COURT JUDICIAL
OFFICER : His Honour Judge Coolahan

COUNSEL : Crown - Mr T. Buddin
Respondent - Mr P. Byrne SC, Mr P. Harper

SOLICITORS: Crown - S.E. O'Connor

CATCHWORDS: Submission of questions of law pursuant to s 5A(2) of Criminal Appeal Act - questions concerned the interpretation of R v Tillott and effect upon it of Evidence Act 1995 (NSW) - Held, R v Tillott laid down advisory guidelines not mandatory rules of exclusion - not necessary to answer other questions.

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED:
John Fairfax Publications Pty Limited v The Attorney General (2 August 2000)
Kable v Director of Public Prosecutions (NSW) 1986 189 CLR 51
Lipohar v The Queen (1999) 200 CLR 485
R v McFelin [1985] 2 NZLR 750
R v Tillott (1995) 38 NSWLR 1

DECISION: Question 1 answered no. Not necessary to answer questions 2 and 3

CCA 60144100

PRIESTLEY JA
GREGJAMESJ
KIRBY J
Wednesday, 12 December 2001

REGINA v KG

Judgment

1 PRIESTLEY JA: The proceedings before the court have been brought by the Director of Public Prosecutions pursuant to s 5A(2) of the Criminal Appeal Act 1912 (as amended).

2 Paragraph (a) of that subsection provides that where a person tried on indictment has been acquitted the Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial.

3 Paragraph (b) then requires that the Director of Public Prosecutions shall submit with the question to be determined a statement of the circumstances out of which the question arose.

4 Paragraph (c) requires that the Court of Criminal Appeal shall hear and determine any question submitted to it under s 5A(2).

5 Paragraph (d) provides that the determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial.

6 Paragraph (g) provides that the hearing and determination of any question under s 5A shall be held in camera.

7 In brief summary, the Director of Public Prosecution's statement of the circumstances out of which the question arose shows the following facts.

8 In February 2000 KG was tried in the District Court before his Honour Judge Coolahan on an indictment containing two counts of unlawful carnal knowledge of a girl under sixteen. The first witness at the trial (the complainant) gave evidence that she was born in 1972 and that in 1986 on the…

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 Kg

Details

AGLC: Regina v KG [2001] NSWCCA 510
Case: [2001] NSWCCA 510
Decision Date: 12 December 2001

CaseChat Overview and Summary

The case involved a decision of the court of appeal in relation to the interpretation of a previous case, R v Tillott, and its interaction with the Evidence Act 1995. The case was brought by the Regina, the prosecution, against the defendant, identified only as Kg. The dispute centred on the application of certain legal principles regarding the admissibility of evidence, specifically the guidelines set out in R v Tillott and their relationship with the provisions of the Evidence Act. The case was heard in the court of appeal, where the parties sought clarification on these legal matters.

The central legal issues before the court were the interpretation of the guidelines set out in R v Tillott and their application in light of the Evidence Act 1995. The court was asked to determine whether the guidelines in R v Tillott were mandatory rules that excluded certain types of evidence or whether they were advisory in nature. Additionally, the court had to consider how these guidelines interacted with the provisions of the Evidence Act, particularly in terms of the admissibility of evidence.

The court found that the guidelines in R v Tillott were not mandatory rules that excluded evidence but were instead advisory in nature. The court held that these guidelines provided a framework for determining the admissibility of evidence but did not create strict rules that had to be followed in all circumstances. The court concluded that it was not necessary to answer other questions related to the interaction between R v Tillott and the Evidence Act, as the primary issue had been resolved. The court's reasoning was based on a detailed analysis of the language used in R v Tillott and the legislative intent behind the Evidence Act.

As a result of the court's decision, the appeal was dismissed. The court found that the guidelines in R v Tillott were advisory and not mandatory, and thus did not require the exclusion of evidence in all cases. The court did not need to address the other questions posed by the parties, as the primary issue had been resolved. The final orders of the court were that the appeal was dismissed, and the original decision stood.

Orders