RG v R

Case [2010] NSWCCA 173 9 August 2010

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New South Wales
Court of Criminal Appeal

CITATION: RG v R [2010] NSWCCA 173

HEARING DATE(S): 21 July 2010

JUDGMENT DATE:
9 August 2010

JUDGMENT OF: Campbell JA at 1; Simpson J at 2; Whealy J at 46

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – offences against the person – sexual offences – aggravated indecent assault - victim under age of 16 years - CRIMINAL LAW – appeal against conviction - EVIDENCE – whether trial judge erred by failing adequately to distinguish between tendency and context evidence – whether trial judge permitted tendency evidence led before the Jury otherwise than in accordance with s 97 and s 101 of the Evidence Act 1995 (NSW) – evidence admitted to establish context and not for tendency purposes – appropriate directions given

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: DJV v R [2008] NSWCCA 272
JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333
Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308

PARTIES: RG (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/602

COUNSEL: G D Wentler (Applicant)
S Dowling (Respondent)

SOLICITORS: Van Houten Law (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/602

LOWER COURT JUDICIAL OFFICER: Syme DCJ

LOWER COURT DATE OF DECISION: 18 December 2009

2009/602

CAMPBELL JA
SIMPSON J
WHEALY J
9 August 2010

RG v R

Judgment

1 CAMPBELL JA: I agree with Simpson J.

2 SIMPSON J: On 15 June 2009 the appellant was convicted after jury trial of one charge of aggravated indecent assault, brought under s 61M(1) of the Crimes Act 1900. The circumstance of aggravation was that the victim (the complainant) was under the age of 16 years. (She was in fact just short of 12 years of age.)

3 On 18 December 2009 the appellant was sentenced in respect of this offence to imprisonment for 4½ years with a non-parole period of 2½ years.

4 The appellant appeals against the conviction. He has not sought leave to appeal against the sentence. He has raised only a single ground of appeal against conviction, concerning the admission of certain evidence that, he asserts, ought properly to be characterised as tendency evidence within the meaning of s 97 of the Evidence Act 1995. That being so, the outline of the relevant background can be brief.

Background

5 The appellant is the father of two daughters, EG (the complainant), born in August 1991, and ZG, born in February 1993. He was married to the mother of both girls. In about 1996 the marriage failed and the appellant moved out of the matrimonial home. For some time thereafter he had little or no contact with the girls. From about 1999, in accordance with orders made by the Family Court of Australia, the appellant resumed contact with them. Initially,…

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 RG v R

Details

AGLC: RG v R [2010] NSWCCA 173
Case: [2010] NSWCCA 173
Decision Date: 9 August 2010

CaseChat Overview and Summary

In this case, the appellant, RG, appealed against his conviction for aggravated indecent assault of a victim under the age of 16 years. The appeal was heard in the NSW Court of Criminal Appeal. The primary issue before the court was whether the trial judge erred in the handling of evidence, specifically whether the trial judge allowed the jury to consider evidence that was otherwise prohibited under sections 97 and 101 of the Evidence Act 1995 (NSW). Additionally, the court needed to determine if the trial judge adequately distinguished between tendency and context evidence, as well as whether appropriate directions were given to the jury regarding this evidence.

The court examined the trial judge’s handling of evidence and considered whether the judge erred by permitting evidence that was otherwise inadmissible under the specified sections of the Evidence Act. The court assessed the judge's directions to the jury and whether they were sufficient to ensure that the evidence was considered only for its proper purpose, which in this instance was to establish the context rather than for tendency purposes. The court concluded that the trial judge had correctly admitted the evidence as context evidence, not for tendency purposes, and had provided appropriate directions to the jury. The judge’s directions were found to be adequate, ensuring that the evidence was not improperly considered by the jury.

Based on the court's findings, the appeal was dismissed. The court determined that there was no error in the trial judge's handling of the evidence, and the appeal against the conviction was not successful. The decision affirmed the conviction of the appellant for the offence of aggravated indecent assault of a victim under the age of 16 years.

Orders