R v Gary Thomas Mitchell [2000] NSWCCA 188

New South Wales Court of Criminal Appeal

CITATION : R v Gary Thomas Mitchell [2000] NSWCCA 188 FILE NUMBER(S) : CCA 60589/99 HEARING DATE(S) : 17 May 2000 JUDGMENT DATE : 26 May 2000

PARTIES : Gary Thomas Mitchell JUDGMENT OF : Spigelman CJ at 1; James J at 2; Sperling J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1075 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : Mr M Grogan for the Crown Mr P Byrne SC for the Appellant SOLICITORS : S.E. O'Connor for the Crown Michael Croke & Co for the Appellant CATCHWORDS : Criminal law - sexual intercourse without consent - whether verdict unsatisfactory - whether misdirection material - no question of principle. LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED: M (1994) 181 CLR 487 Jones (1997) 191 CLR 439 DECISION : Appeal dismissed.

18 - - IN THE COURT OF CRIMINAL APPEAL

60589/99

SPIGELMAN CJ JAMES J SPERLING J

Friday 26 May 2000

REGINA v GARY THOMAS MITCHELL JUDGMENT

1 SPIGELMAN CJ: I agree with Sperling J. 2 JAMES J: I agree with the judgment of Sperling J. 3 SPERLING J: On 28 September 1999, at a trial in the District Court, the appellant was convicted on a single charge of sexual intercourse without consent. The appeal is against the conviction. 4 There are two grounds of appeal: 1. The verdict of the jury is unreasonable having regard to the evidence in the case. 2. The learned trial judge's directions to the jury on the evidence of other alleged sexual assaults, left to the jury as evidence of relationship and "guilty passion", were erroneous and inadequate.