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Van Gestel v The King

Van Gestel v The King

Case [2023] NSWCCA 263 20 October 2023

Appeal

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Van Gestel v R [2023] NSWCCA 263
Hearing dates: 29 September 2023
Decision date: 20 October 2023
Before: Leeming JA at [1];
Davies J at [66];
Wilson J at [67]
Decision:
1. Grant leave to appeal, confined to proposed grounds 1 and 3, and otherwise refuse leave.
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – applicant convicted of eight counts of indecent assault – all offending decades old – whether evidence of complaint, many years after the event, was admissible as fresh in the complainants’ memories under Evidence Act 1995 (NSW), s 66 – whether evidence of complaint admissible as evidence re-establishing credibility under Evidence Act, s 108(3) – whether trial judge ruled evidence admissible at pre-trial hearing and counsel thereafter acquiesced in evidence being led – whether trial judge obliged to intervene when no objection was made to complaint evidence – held that trial judge had made no ruling, trial judge was not obliged to intervene, and evidence would have been admissible pursuant to s 108(3) even if objection had been taken
CRIME – appeals – appeal against conviction – indecent assault – elements of offence – whether mental element of indecent intention in addition to intention of committing the assault – where no such direction sought at trial – where authorities bearing on issue not addressed – whether sentence for these offences subsumed by sentence imposed for other offending – leave refused
CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts unreasonable having regard to inconsistencies, age of complainants and absence of complaint for many years – appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61E(1), 61M(1), 578A, 578C
Evidence Act 1995 (NSW), ss 66, 108
Sexual Offences Act 1956 (UK), s 14(1)
Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases Cited:
Clay (a Pseudonym) v The Queen (2014) 43 VR 405; [2014] VSCA 269
Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; 396 ALR 545
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
Harkin v R (1989) 38 A Crim R 296
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42
Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
R v Court [1989] 1 AC 28

Category: Principal judgment
Parties: Robert Van Gestel (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
G Newton SC (Respondent)
Solicitors:
McAneny Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00389938
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

9 June 2022

Before:

Latham SC ADCJ

File Number(s):

2019/00389938

JUDGMENT

LEEMING JA: Mr Robert Van Gestel seeks…

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 Van Gestel v The King

Details

AGLC: Van Gestel v The King [2023] NSWCCA 263
Case: [2023] NSWCCA 263
Decision Date: 20 October 2023

CaseChat Overview and Summary

In the case of Van Gestel v The King, the appellant was convicted of eight counts of indecent assault, with all the offences occurring decades prior to the trial. The crux of the appeal was the admissibility of evidence concerning complaints made by the victims many years after the incidents, and whether these complaints could be considered fresh in the complainants' memories under the Evidence Act 1995 (NSW), section 66. Additionally, the appeal addressed whether the evidence could be admitted under section 108(3) of the Evidence Act as evidence re-establishing credibility. The appellant also questioned whether the trial judge had ruled on the admissibility of this evidence at a pre-trial hearing and if the counsel had acquiesced to the evidence being led. Another point raised was whether the trial judge was obliged to intervene when no objection was made to the complaint evidence. The court found that the trial judge had not made any ruling on the admissibility of the evidence, and thus, was not obliged to intervene. The court further determined that the evidence would have been admissible under section 108(3) even if an objection had been made.

The court also considered whether the mental element of indecent intention was necessary in addition to the intention of committing the assault, an issue that was not specifically directed to the jury. The appellant did not seek such a direction at the trial, and the authorities relevant to this issue were not addressed. Additionally, the appeal questioned whether the sentence for these offences was subsumed by the sentence imposed for other offences. The court found that the issues raised did not provide grounds for the appeal to be successful. The leave to appeal was refused.

In addressing the final point of the appeal, the court examined whether the jury's verdicts were unreasonable given the inconsistencies in the evidence, the age of the complainants, and the absence of complaint for many years. The court concluded that the jury's verdicts were not unreasonable and dismissed the appeal. Consequently, the convictions and sentences imposed by the trial court were upheld.

Orders