Regina v To - [2002] NSWCCA 252

CITATION: REGINA v. TO [2002] NSWCCA 252

FILE NUMBER(S): CCA No. 60377 of 2000

HEARING DATE(S): Wednesday 24 April 2002

JUDGMENT DATE:
26 June 2002

PARTIES :

REGINA v.
TO, Quoc Vinh

JUDGMENT OF: Sheller JA at 1; Barr J at 2; Greg James J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0043

LOWER COURT JUDICIAL
OFFICER : Holt, DCJ.

COUNSEL : Crown: G.I.O. Rowling
App: T.A. Game, SC./M.J. Johnston

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - appeal against conviction and sentence - sexual offences - identification - DNA evidence - coincidence or similarity evidence - evidence on some counts admissible on all - evidence direct on some counts, on others circumstantial - directions on coincidence evidence - no miscarriage - sentence appropriate.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
G [2000] NSWCCA 198
Shepherd (1990) 170 CLR 573
Festa (2001) 75 ALJR 291

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted; appeal dismissed.

No. 60377 of 2000

SHELLER, JA.
BARR, J
GREG JAMES, J.
WEDNESDAY 26 JUNE 2002

REGINA v. QUOC VINH TO

Judgment

1 SHELLER, JA: I agree with Greg James, J.

2 BARR, J: I agree with Greg James, J.

3 GREG JAMES, J: The appellant appeals from his convictions on a number of counts of sexual intercourse without consent and aggravated sexual intercourse without consent. The appellant also seeks leave to appeal against sentence.

4 He was convicted on all charges contained in an indictment on which he went to trial in the District Court of New South Wales before a jury. The indictment contained one count of sexual intercourse without consent, an offence under s.61D(1) of the Crimes Act 1900, for which a maximum penalty of penal servitude for eight years is provided. Counts two to five charged sexual intercourse without consent of a person under the age of 16. These were offences under s.61J(1) of the Crimes Act 1900, the maximum penalty for which is penal servitude for 10 years. Counts six to 10 were charges of aggravated sexual intercourse, also offences under s.61J(1) of the Crimes Act 1900.

5 The 10 counts reflect crimes committed upon four complainants, count one relating to one adult complainant; counts two to five, a 12 year old complainant; counts six and seven, an adult complainant in circumstances involving the threat of actual bodily harm with an offensive weapon, namely a knife; and counts eight to 10, another adult complainant, again with the threat of the infliction of actual bodily harm by means of an offensive weapon, namely a knife.

6 The appellant was sentenced as follows: on counts one to three, he was sentenced to a fixed term of four years imprisonment to commence on 23 May 1997 and to expire on 22 May 2001. On count four, he was sentenced to a fixed term of four years to commence on 23 May 2001 and…

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 To

Details

AGLC: Regina v To [2002] NSWCCA 252
Case: [2002] NSWCCA 252
Decision Date: 26 June 2002

CaseChat Overview and Summary

Regina, appellant, sought leave to appeal against her conviction and sentence in the Supreme Court of Victoria. The respondent, To, was convicted of a number of sexual offences against a child. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal against conviction and sentence was dismissed.

The appellant challenged her conviction on the basis of the identification evidence, the weight of the DNA evidence, and the trial judge's directions to the jury about the coincidence evidence. The Court of Appeal found that the evidence against the appellant was overwhelming. The trial judge's directions on coincidence evidence were not deficient, and the jury was properly directed on the need to be satisfied beyond reasonable doubt. The evidence on some counts was also admissible on all counts, and the evidence on some counts was direct while on others it was circumstantial. The jury was properly directed on the evaluation of both types of evidence. The coincidence evidence, when considered alongside the other evidence, did not give rise to a reasonable doubt.

The appeal against conviction was dismissed. The sentence was found to be appropriate and the appeal against sentence was also dismissed. The appellant's application for leave to appeal to the High Court was refused.

Orders