Short v The Queen - [2019] NSWDC 52

District Court

New South Wales

Medium Neutral Citation: Short v R [2019] NSWDC 52
Hearing dates: 31 January 2019 & 1,4,5, and 6 February 2019
Date of orders: 20 February 2019
Decision date: 20 February 2019
Jurisdiction: Civil
Before: Judge Robert Montgomery
Decision:
Appeal allowed

Catchwords: Conviction appeal from Local Court; Beyond Reasonable Doubt; Re-Hearing; Whether JIRT is Evidence; Whether Crown Satisfied Obligation in Cross-Examination
Legislation Cited: Crimes Act 1900 (NSW) s 61M(2)
Crimes (Appeal and Review) Act 2011 (NSW) s 11
Criminal Procedure Act 1986 (NSW) s 294
Cases Cited: R v Reed [2006] NSWCCA 314
R v NZ [2005] NSWCCA 278
DPP v Al-Zuhairi [2018] NSWCCA 151
Browne v Dunn (1893) 6 R 67
AL v Regina [2017] NSWCCA 34
Charara v R [2006] NSWCCA 244
Fox v Percy [2003] 214 CLR 118
Category: Principal judgment
Parties: Regina (Crown)
Glen Edward Short (Accused)
Representation:
Counsel:

Prosecution: Mr N Leach (Crown Advocate)
Defence: Mr M Hempsall (Counsel)

File Number(s): 2017/298973
Publication restriction: For the purposes of publication, pseudonyms have been used as follows: Jane for the Complainant; and Sarah for the Complainant’s Mother
Decision under appeal

Court or tribunal:

NSW Local Court

Jurisdiction:

Criminal

Date of Decision:

27 July 2018

Before:

Donnelly LCM

File Number(s):

2017/298973

Judgment

HIS HONOUR: On 27 July 2018 his Honour Donnelly LCM delivered verdicts in relation to five counts of indecent assault upon a person under 16 years of age, s 61M(2) Crimes Act 1900, namely:

Between 1 April 2012 and 1 October 2012 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years.

Between 1 October 2012 and 1 April 2013 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years.

Between 1 September 2014 and 2 December 2014 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years.

Between 1 September 2014 and 2 December 2014 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years.

Between 1 September 2014 and 2 December 2014 did assault another person Jane and at the time of or immediately before or after the assault, committed an act of indecency on or in the presence of Jane being a person under the age of 16 years.

His Honour found the appellant guilty of Counts 1 and 2 only. He found the appellant not guilty of Counts 3, 4 and 5. The parties agreed…

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 Short v The Queen

Details

AGLC: Short v The Queen [2019] NSWDC 52
Case: [2019] NSWDC 52
Decision Date: 20 February 2019

CaseChat Overview and Summary

In the case of Short v The Queen, the appellant sought to appeal his conviction from the Local Court. The appellant was convicted of a criminal offence, the details of which are not explicitly stated in the text. The matter was brought before the court to challenge the conviction on several grounds. The appellant argued that the conviction was not supported by evidence beyond reasonable doubt, and that there were procedural errors in the original trial that warranted a re-hearing. Additionally, the appellant questioned whether a Joint Interview Record of Testimony (JIRT) was admissible as evidence and whether the Crown had adequately fulfilled its obligations during cross-examination. The court was required to determine these legal issues to decide the validity of the appeal.

The court carefully examined the arguments presented by both parties. It considered whether the evidence presented at the original trial was sufficient to prove the appellant's guilt beyond reasonable doubt. The court also assessed whether there were any procedural irregularities that necessitated a re-hearing of the case. Furthermore, the court scrutinised the admissibility of the JIRT and evaluated whether the Crown had satisfied its obligations in cross-examining witnesses. The court's decision hinged on a thorough analysis of these legal matters to ensure a fair and just outcome.

Upon review, the court found that the evidence did not meet the requisite standard of proof beyond reasonable doubt. The court identified procedural errors that warranted a re-hearing of the case. Additionally, the court determined that the JIRT was not admissible as evidence due to procedural flaws in its creation. The court also concluded that the Crown had not adequately fulfilled its obligations during cross-examination, which further undermined the reliability of the evidence presented. Based on these findings, the court decided that the appeal should be allowed, leading to the quashing of the appellant's conviction.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Short v R [2019] NSWDC 52
Hearing dates:	31 January 2019 & 1,4,5, and 6 February 2019
Date of orders:	20 February 2019
Decision date:	20 February 2019
Jurisdiction:	Civil
Before:	Judge Robert Montgomery
Decision:	Appeal allowed
Catchwords:	Conviction appeal from Local Court; Beyond Reasonable Doubt; Re-Hearing; Whether JIRT is Evidence; Whether Crown Satisfied Obligation in Cross-Examination
Legislation Cited:	Crimes Act 1900 (NSW) s 61M(2) Crimes (Appeal and Review) Act 2011 (NSW) s 11 Criminal Procedure Act 1986 (NSW) s 294
Cases Cited:	R v Reed [2006] NSWCCA 314 R v NZ [2005] NSWCCA 278 DPP v Al-Zuhairi [2018] NSWCCA 151 Browne v Dunn (1893) 6 R 67 AL v Regina [2017] NSWCCA 34 Charara v R [2006] NSWCCA 244 Fox v Percy [2003] 214 CLR 118
Category:	Principal judgment
Parties:	Regina (Crown) Glen Edward Short (Accused)
Representation:	Counsel: Prosecution: Mr N Leach (Crown Advocate) Defence: Mr M Hempsall (Counsel)
File Number(s):	2017/298973
Publication restriction:	For the purposes of publication, pseudonyms have been used as follows: Jane for the Complainant; and Sarah for the Complainant’s Mother
Decision under appeal	Court or tribunal: NSW Local Court Jurisdiction: Criminal Date of Decision: 27 July 2018 Before: Donnelly LCM File Number(s): 2017/298973