RGM v R

Case [2012] NSWCCA 89 15 May 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RGM v R [2012] NSWCCA 89
Hearing dates: 16/03/2012
Decision date: 15 May 2012
Before: McClellan CJ at CL at [1]
Johnson J at [2]
Fullerton J at [3]
Decision:

Leave is granted to extend the time for bringing the appeal.
Appeal against conviction allowed.
Conviction on both counts on the indictment is quashed.
Order a new trial.

Catchwords: CRIMINAL LAW - appeal against conviction - aggravated sexual intercourse - whether trial judge erred in directions concerning use of relationship or context evidence - credibility of complainant - tendency evidence - whether trial judge failed to properly put defence case - whether trial judge erred in directions concerning assessment of evidence of child witnesses
Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: CMG v R [2011] VSCA 416
Crampton v R [2000] HCA 60; 206 CLR 161
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Germakian v R [2007] NSWCCA 373; 70 NSWLR 467
KTR v R [2010] NSWCCA 271
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397
NJB v R [2010] NTCCA 05
Peacock v R [2008] NSWCCA 264; 190 A Crim R 454
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
R v Barker [2010] EWCA Crim 4
R v Lawrence [1980] 1 NSWLR 122
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
Wong v R [2009] NSWCCA 101
Category: Principal judgment
Parties: RGM (Appellant)
The Crown
Representation: Counsel:
S Corish (Appellant)
N Noman (Crown)
Solicitors:
Michael Croke & Co (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/6957
Publication restriction: Non-publication order on the name of the appellant and the name of the complainant
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-06-04 00:00:00

Before:

Ellis DCJ

File Number(s):

2009/6957

Judgment

McCLELLAN CJ at CL: I agree with Fullerton J.

JOHNSON J: I agree with Fullerton J.

FULLERTON J: On 4 June 2010 the appellant was convicted after trial of two counts of aggravated sexual intercourse with the complainant without her consent contrary to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was by reason of the complainant's age. She was 14 at the time of the offence charged in the first count and 14 or 15 at the time of the offence charged in the second count. He appeals his conviction on both counts.

On 29 June 2010 the appellant was sentenced to imprisonment for an effective term of 10 years with a non-parole period of 6 years. There is no application for leave to appeal against sentence.

The application for leave to appeal out of time

A notice of intention to appeal was filed personally by the appellant on 30 June 2010. That notice expired on 31 December…

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 RGM v R

Details

AGLC: RGM v R [2012] NSWCCA 89
Case: [2012] NSWCCA 89
Decision Date: 15 May 2012

CaseChat Overview and Summary

The appellant, RGM, appealed against his conviction for aggravated sexual intercourse, as defined by section 30 of the Crimes Act 1900 (NSW). The case was heard in the Court of Criminal Appeal. The dispute centred around whether the trial judge erred in his directions to the jury concerning the use of relationship or context evidence, the credibility of the complainant, the admissibility of tendency evidence, and whether the trial judge properly presented the defence case. The appeal also questioned whether the trial judge erred in his directions regarding the assessment of evidence provided by child witnesses.

The primary legal issues the court had to decide were whether the trial judge gave appropriate directions to the jury about the use of relationship or context evidence and the credibility of the complainant. The court also needed to determine if the trial judge correctly admitted and directed the jury on the use of tendency evidence and whether the trial judge failed to properly present the defence case to the jury. Additionally, the court considered whether the trial judge erred in his directions regarding the assessment of evidence provided by child witnesses.

The Court of Criminal Appeal found that the trial judge did not err in his directions concerning the use of relationship or context evidence. The court held that the trial judge's directions adequately guided the jury on the proper assessment of the complainant's credibility. The court also found that the trial judge did not err in his directions regarding the admission and assessment of tendency evidence. However, the court identified a failure by the trial judge in adequately presenting the defence case to the jury. Moreover, the court determined that the trial judge did not err in his directions concerning the assessment of evidence from child witnesses.

The Court of Criminal Appeal allowed the appeal and quashed the conviction. The court ordered a re-trial of the appellant for the offence of aggravated sexual intercourse.

Orders