RJ v The Queen

[2010] NSWCCA 263

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
RJ v R [2010] NSWCCA 263

FILE NUMBER(S):
2009/7443

HEARING DATE(S):
22 September 2010

JUDGMENT DATE:
15 November 2010

PARTIES:
RJ (Appellant)
Regina (Crown)

JUDGMENT OF:
Campbell JA Latham J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/7443

LOWER COURT JUDICIAL OFFICER:
Boulton ADCJ

LOWER COURT DATE OF DECISION:
18 December 2009

COUNSEL:
G D Wendler (Appellant)
P G Ingram (Crown)

SOLICITORS:
Van Houten Law (Appellant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – Sexual assault – evidence – CRIMINAL LAW – Evidence – competence of person to take oath – unsworn evidence by child – admissibility of matter referred to in unsworn evidence – fundamental defect through manner of receiving unsworn evidence – appeal allowed, matter remitted to District Court for new trial – CRIMINAL LAW – Appeal and new trial – objections not raised in court below – whether leave required to appeal against decision to receive unsworn evidence – reason why matter not raised at trial is important in deciding whether to grant leave under Rule 4, Criminal Appeal Rules – CRIMINAL LAW – Evidence – accused evidence of good character – whether Crown submission prejudicial to accused – overall context of prosecutor’s speech qualified effect of relevant passage – accurate to say that good character evidence is not determinative of the issue of guilt or innocence – no miscarriage of justice – CRIMINAL LAW – Evidence – evidence of good character of accused– whether judge’s directions to jury inadequate or prejudicial to accused – held that it is open to judge to direct jury that they are entitled to take evidence of good character into account – no miscarriage of justice

LEGISLATION CITED:
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Amendment Act 2007

CATEGORY:
Principal judgment

CASES CITED:
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Pease v R [2009] NSWCCA 136
R v Brooks (1998) 44 NSWLR 121
R v Fitzsimmons (NSWCCA, 15 June 1998, unreported)
R v JTB [2003] NSWCCA 295
R v RAG [2006] NSWCCA 343
R v Trimboli (1979) 1 A Crim R 73
R v Wedd [2000] WASCA 273
RA v R [2007] NSWCCA 251
Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
Tripodina v R; Morabito v R (1988) 35 A Crim R 183

TEXTS CITED:

DECISION:
(1) Appeal allowed.
(2) Set aside the conviction in the court below.
(3) Remit the matter to the District Court for a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/7443

CAMPBELL JA
LATHAM J
PRICE J

15 NOVEMBER 2010

RJ v The Queen

Judgment

1. CAMPBELL JA:  The Appellant was convicted at a trial held in the District Court in August 2009 of four offences involving a sexual assault against a child.  The one child was involved in all of the charges.  That child was seven years of age at the time of the assaults.  She…