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RWC v The Queen

RWC v The Queen

Case [2010] NSWCCA 332 22 December 2010

Aggravated & Exemplary Damages

Breach of Contract

Admissibility of Evidence

Res Judicata

New Trial

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: RWC v R [2010] NSWCCA 332
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 November 2010

JUDGMENT DATE:
22 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 151; Garling J at 152

DECISION: (i) appeal against conviction allowed, convictions quashed.
(ii) there be a new trial on all counts.

CATCHWORDS: CRIMINAL LAW – aggravated sexual intercourse without consent – act of indecency – context evidence – test of admissibility – tendency evidence – test of admissibility – purpose of tender – test not applied – new trial ordered - CRIMINAL LAW – aggravated sexual intercourse without consent – proof of lack of consent – alternative verdict available - CRIMINAL LAW – sexual offences – unreasonable verdict – test of unreasonable verdict – verdict not unreasonable

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: DJV v R [2008] NSWCCA 272
ES v R (No 1) [2010] NSWCCA 197
HML v The Queen [2008] HCA 16; 235 CLR 334
Leonard v R [2006] NSWCCA 267; 67 NSWLR 545
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
RG v R [2010] NSWCCA 173
SKA v R; R v SKA [2009] NSWCCA 186
SKA v The Queen [2010] HCATrans 198
The Queen v Nguyen [2010] HCA 38

PARTIES: RWC (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/17646

COUNSEL: A Smith SC (Appellant)
D Arnott SC (Respondent)

SOLICITORS: MDR Lawyers (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/17646

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 4 December 2009

2008/17646

SIMPSON J
PRICE J
GARLING J
22 December 2010

RWC v R

Judgment

1 SIMPSON J: This is an appeal against conviction. On 4 December 2009, following a jury trial, the appellant was convicted in the District Court at Lismore of three counts of aggravated sexual intercourse without consent. These charges were brought under s 61J of the Crimes Act 1900. Two circumstances of aggravation were relevant. They were that the complainant was under the age of 16 years, and that she was under the authority of the appellant (she was his daughter, aged nine, 10 or 11 at the time of the incidents giving rise to the charges). Additionally, the appellant was convicted of committing an act of indecency towards a person under the age of 16 years, in circumstances of aggravation, an offence against s 61O of the Crimes Act. In this case the single circumstance of aggravation was that the complainant was under the authority of the appellant (that she was under the age of 16 years is…

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 RWC v The Queen

Details

AGLC: RWC v The Queen [2010] NSWCCA 332
Case: [2010] NSWCCA 332
Decision Date: 22 December 2010

CaseChat Overview and Summary

The appellant, RWC, was charged with aggravated sexual intercourse without consent and an act of indecency, and the case was heard in the High Court of Australia. The appellant appealed against his conviction and sentence, arguing that the trial judge had erred in admitting evidence of other sexual acts and in failing to direct the jury on the alternative verdict of sexual intercourse without consent. The respondent, The Queen, argued that the evidence was properly admitted and that the trial judge had correctly directed the jury.

The legal issues before the court were whether the trial judge had erred in admitting evidence of other sexual acts, whether the trial judge had erred in failing to direct the jury on the alternative verdict, and whether the verdict was unreasonable. The court held that the trial judge had erred in admitting evidence of other sexual acts, as the test for admissibility of tendency evidence was not properly applied. The court also held that the trial judge had erred in failing to direct the jury on the alternative verdict, as there was evidence to support such a verdict. However, the court held that the verdict was not unreasonable, as there was sufficient evidence to support the conviction for aggravated sexual intercourse without consent.

The court ordered a new trial for the appellant, as the errors in the trial had the potential to affect the safety of the verdict. The court emphasised the importance of correctly applying the tests for admissibility of tendency evidence and directing the jury on available alternative verdicts. The court also noted that the trial judge's failure to direct the jury on the alternative verdict was a significant error, as it meant that the jury was not properly directed on the elements of the offence of sexual intercourse without consent. However, the court held that the verdict was not unreasonable, as there was sufficient evidence to support the conviction for aggravated sexual intercourse without consent.

Orders