R v BDF [1999] NSWCCA 98

New South Wales Court of Criminal Appeal CITATION : R v BDF [1999] NSWCCA 98 FILE NUMBER(S) : CCA 60340/98 HEARING DATE(S) : 1/12/98 JUDGMENT DATE : 6 May 1999

BDF (Appellant) PARTIES : Regina (Respondent)

JUDGMENT OF : Sheller JA at 1; Dowd J at 3; Hidden J at 78

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC322 372/98 LOWER COURT JUDICIAL OFFICER : Ford ADCJ

COUNSEL : GP Craddock (Appellant) LMB Lamprati (Respondent) SOLICITORS : TA Murphy (Appellant) SE O'Connor (Respondent) CATCHWORDS : Conviction unsafe and unsatisfactory; appropriateness of decision to allow cross-examination of Crown witness; error contended as to admission of evidence; contention as to inadequate directions of complaint; refusal to limit evidence. ACTS CITED : Evidence Act 1995 (NSW) BD (1997) 94 A Crim R 131 Graham v R (1998) 157 ALR 404 Jones v R (1997) 2 ALJR 78 Longman v R (1989) 168 CLR 79 CASES CITED: M v R (1994) 181 CLR 487 R v Papakosmas (CCA NSW unreported 10 December 97) Fleming v The Queen (1998) 158 ALR 379 DECISION : Appeal allowed; Convictions quashed; Direct a judgment and verdict of acquittal on each count

IN THE COURT OF CRIMINAL APPEAL

SHELLER JA DOWD J HIDDEN J

60340/98

6 May 1999

R v BDF

JUDGMENT 1 SHELLER JA: On 1 December 1998 at the conclusion of the hearing of this appeal the Court made the following orders: 1 . The appeal is allowed; 2. The convictions are quashed; and 3. A new trial is ordered. The Court stated that it would give its reasons for judgment later. 2 In the course of preparing these reasons the Court has reached the conclusion that the verdict of guilty was unsafe. The reasons for that conclusion are set out in the judgment of Dowd J with which I agree. That being so I am of the opinion that the appellant is entitled to a verdict of acquittal and that the order for a new trial should be revoked. 3 DOWD J: The Appellant was indicted before his Honour Ford ADCJ and a jury of twelve at the Campbelltown District Court on six counts, being three counts of attempting sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of 16 years (counts 1, 2 and 5) and three counts of having sexual intercourse without consent, in the same circumstances of aggravation (counts 2, 4 and 6) to all of which counts the Appellant pleaded not guilty. The Complainant gave no evidence of penetration, and on that basis, the Crown asked and his Honour agreed to put the counts alleging sexual intercourse (counts 2, 4 and 6) to the jury as attempts. 4 On 30 March 1998 the jury returned with verdicts of guilty to all counts. On 12 June 1998 the Appellant was sentenced on all counts to a minimum term of penal servitude for 2 years 6 months for each count, commencing on 12 June 1998 and expiring on 11 December 2000, with an additional term of one year 6 months, commencing on 12 December 2000 and expiring on 11 June 2002, the sentences to be served concurrently. The Appellant appealed against his conviction. 5 The Complainant, who was aged 10 at the time of the events that are the subject of the first count, lived with her mother, her siblings and the Appellant whom her mother had married in November 1993. During the trial there was evidence to the effect that the Complainant did not get on with the Appellant stemming from the fact that the Complainant's mother had left the Complainant's father to enter a relationship with the Appellant.