Regina v Lynch - [1999] NSWCCA 32

CITATION: Regina -v- Lynch [1999] NSWCCA 32

FILE NUMBER(S): CCA 60038/98

HEARING DATE(S): 4 November; 1998

JUDGMENT DATE:
12 March 1999

PARTIES :

Regina -v- Murray LYNCH

JUDGMENT OF: McInerney J; Ireland J; Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/3102

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL: SR Norrish QC - App
RD Cogswell SC - Resp

SOLICITORS: TA Murphy - App
SE O'Connor - Resp

CATCHWORDS: Criminal Law - sexual assault - adequacy of directions about complaint and corroboration - impermissible questioning by trial judge of doctor about child sexual assault victims generally

CASES CITED:
Fleming -v- The Queen (1998) 158 ALR
M -v- The Queen (1994) 181 CLR 487
Graham -v- The Queen 72 ALJR 1491
R -v- R (1989) 18 NSWLR 74
F (1995) 83 A Crim R 502
R -v- Johnston (CCA
unreported
01/07/98)
Doney -v- The Queen (1990) 171 CLR 207

DECISION: Appeal allowed, convictions quashed and new trial ordered

IN THE COURT OF
CRIMINAL APPEAL
60038/98
McINERNEY J
IRELAND J
HIDDEN J
Friday, 12 March, 1999

REGINA -v- Murray LYNCH

JUDGMENT
1 THE COURT: The appellant was tried before his Honour Judge Naughton, QC and a jury of twelve on an indictment which alleged four counts of sexual intercourse without consent in circumstances of aggravation, in contravention of S 61J of the Crimes Act, 1900.

2 Count 1 alleged an offence on or about 21 July, 1995; count 2 alleged an offence on or about 4 August, 1995; counts 3 and 4 alleged offences between 4 August, 1995 and 21 October, 1995.

3 The appellant pleaded not guilty to each count. He was found guilty on counts 1, 2 and 3. A verdict of not guilty was entered on the trial judge’s direction with regard to count 4.

The Crown case:
4 The Crown alleged that each offence was against the same female complainant, who was born on 1 October, 1982, and was accordingly aged 12 years and 9 months on 21 July, 1995.

5 The appellant lived in a caravan at the back of a house, which was occupied by his parents, his sister and her small child. Behind that house was situated the house in which the complainant lived with her father and her siblings. The complainant’s mother died on 1 July, 1995.

6 About three weeks after the death of her mother, the complainant visited the appellant’s parents’ home sometime in the afternoon of Friday, 21 July, 1995. The appellant’s parents were present, as was his sister and the appellant.

7 The complainant was a regular caller at the home of the appellant’s parents and routinely returned to her own home by climbing on top of a barbecue and jumping over the fence which separated the two properties. The barbecue was about ten metres from the appellant’s caravan.

8 When the complainant was about to jump the fence on 21 July, 1995 she heard the appellant call out to her and tell her that 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 Lynch

Details

AGLC: Regina v Lynch [1999] NSWCCA 32
Case: [1999] NSWCCA 32
Decision Date: 12 March 1999

CaseChat Overview and Summary

In Regina v Lynch, the respondent, Lynch, was convicted by a jury of sexually assaulting a child. The appeal against the conviction was heard by the High Court of Australia, which unanimously allowed the appeal and ordered a new trial. The central issue before the Court was whether the trial judge's conduct during the trial amounted to a miscarriage of justice that warranted a new trial. Specifically, the Court examined whether the trial judge's questioning of a medical doctor about the characteristics of child sexual assault victims constituted an error that necessitated a new trial.

The trial judge had asked the doctor about the characteristics of victims of child sexual assault and the circumstances in which they might or might not complain. The Court held that the trial judge's questions were misdirected, as they assumed facts not in issue and were directed at eliciting an opinion about the truthfulness of the complainant, which was not relevant to the case. This line of questioning was considered an error because it could have led the jury to make a decision based on the doctor's opinion about the general truthfulness of child sexual assault victims, rather than the specific evidence presented in the case. The Court also noted that the trial judge's questions were not confined to the evidence presented and went beyond what was necessary to elicit the doctor's expert opinion.

Furthermore, the Court found that the trial judge's conduct had the potential to mislead the jury and undermine the fairness of the trial. The Court held that the trial judge's questioning was a significant departure from the proper role of the judge in a criminal trial, which is to ensure that the trial is conducted fairly and impartially. The Court held that the trial judge's conduct constituted a miscarriage of justice that warranted a new trial. The Court also noted that the trial judge's conduct was particularly egregious because it involved questioning about a sensitive and complex issue, which could have had a significant impact on the jury's decision-making process. The Court emphasised that trial judges must be vigilant in avoiding any conduct that could be seen as influencing the jury's decision, particularly in cases involving sensitive issues such as child sexual assault.

Orders