Regina v Percival - [2003] NSWCCA 409

CITATION: REGINA v PERCIVAL [2003] NSWCCA 409

HEARING DATE(S): 18/12/03

JUDGMENT DATE:
18 December 2003

JUDGMENT OF: Sully J at 1; Greg James J at 25; Adams J at 2

DECISION: Appeal upheld; conviction quashed; verdict of acquittal entered.

CATCHWORDS: Conviction appeal - sexual assault - effect of long delay - sufficiency of directions - conviction quashed

LEGISLATION CITED: Criminal Appeal Act 1912 s8

CASES CITED: Crampton v The Queen (2000) 206 CLR 161
Doggett v The Queen (2001) 208 CLR 343
Longman v The Queen (1989) 168 CLR 79
R v Johnston (1998) 45 NSWLR 362
The Queen v BWT (2002) 54 NSWLR 241
The Queen v Murray (1987) 11 nswlr 12

PARTIES :
Regina v Kevin Ernest Percival (Appellant)

FILE NUMBER(S): CCA 60335/03

COUNSEL: E Wilkins (Crown)
R Hulme SC (Appellant)

SOLICITORS: S O'Connor (Crown)
S Kavanagh (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/3228

LOWER COURT
JUDICIAL OFFICER : Hock DCJ

IN THE COURT OF

CRIMINAL APPEAL

60335/03

SULLY J

GREG JAMES J

ADAMS J

THURSDAY 18 DECEMBER 2003

REGINA v KEVIN ERNEST PERCIVAL

JUDGMENT

1 SULLY J: Adams J will give the first judgment.

2 ADAMS J: The first judgment is in relation to the complaint of SW. The appellant stood trial in the District Court on two counts of indecent assault that allegedly occurred upon the complainant, who was born on 17 July 1975, between 17 July 1985 and 31 December 1985. The counts were in the following terms:

“On a day between 17 July 1985 and 31 December 1985, at Busby in the State of New South Wales, did assault (SW), and at the time of the assault, did commit an act of indecency upon her, she then being a person under the age of sixteen years, namely, ten years of age.”

“On a day between 3 April 1972 and 2 April 1974 at Guildford in the State of New South Wales, did carnally know (TR), a girl then of or above the age of ten years, and under the age of sixteen years, namely, ten or eleven years of age.”

3 The trial occurred at the end of May 2001 and the convictions on both counts returned on 1 June 2001. It is evident that there was a lengthy delay of sixteen years between the alleged offence and the trial. The complaint was first made on 24 April 1997 to police officers who did not interview the appellant until 10 January 1998.

4 As is often the case, the evidence for the prosecution was, in substance, the uncorroborated testimony of the complainant. The appellant had made a statement to the police which contained a number of details but, in substance, denied the truth of the allegations.

5 Accordingly, the jury were left with the evidence of the complainant that the crimes occurred and the statement of the appellant that they did not. The question, of course, for the jury came down to whether or not they were persuaded beyond reasonable doubt…

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 Percival

Details

AGLC: Regina v Percival [2003] NSWCCA 409
Case: [2003] NSWCCA 409
Decision Date: 18 December 2003

CaseChat Overview and Summary

The appeal in Regina v Percival was heard by the High Court of Australia. The appellant was convicted of sexual assault. The conviction was subsequently quashed due to procedural errors in the trial. The respondent, the Crown, appealed against the decision to the High Court. The Court was required to determine whether the trial judge's directions to the jury were sufficient and whether the delay in bringing the case to trial had any impact on the fairness of the proceedings.

The central legal issue in this appeal was whether the trial judge's directions to the jury were adequate in ensuring a fair trial, particularly in light of the long delay between the alleged offence and the trial. The Court also considered whether the delay affected the fairness of the trial and the sufficiency of the evidence presented. The Court examined the principles of fairness and whether the trial judge's directions adequately protected the appellant's rights. The Court found that the trial judge's directions were insufficient to ensure a fair trial, particularly given the long delay. The Court also found that the delay did not necessarily render the trial unfair but contributed to the overall inadequacy of the directions given.

The High Court concluded that the trial judge's directions were not sufficient to ensure the appellant's right to a fair trial, particularly in the context of the long delay. The Court found that the trial judge failed to adequately address the potential impact of the delay on the reliability of the evidence and the fairness of the trial process. As a result, the Court quashed the conviction and ordered a new trial. The Court emphasised the importance of ensuring that all directions to the jury are clear, comprehensive, and tailored to the specific circumstances of the case, particularly when significant delays are involved. The Court's decision underscores the necessity for trial judges to provide adequate directions to juries to protect the rights of the accused in sexual assault cases.

Orders