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 2010JUDGMENT 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 1995CATEGORY: 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 38PARTIES: 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
22 December 2010SIMPSON J
PRICE J
GARLING J
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…
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- RWC v The Queen [2010] NSWCCA 332
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- [2010] NSWCCA 332
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CaseChat Overview and Summary
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
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Evidence
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