R v Colby [1999] NSWCCA 261

New South Wales Court of Criminal Appeal CITATION : R v Colby [1999] NSWCCA 261 FILE NUMBER(S) : CCA 60587/97 HEARING DATE(S) : 11 March 1999 JUDGMENT DATE : 26 August 1999

Regina PARTIES : v Robert Victor Colby JUDGMENT OF : Mason P at 1; Grove J at 217; Dunford J at 218

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0865 LOWER COURT JUDICIAL OFFICER : Kinchington DCJ

COUNSEL : A: SR Norrish QC R: WG Dawe QC SOLICITORS : A: TA Murphy R: SE O'Connor CATCHWORDS : APPEAL - Against conviction - Aggravated sexual assault (s61J Crimes Act) - Sexual intercourse with a person between 10 and 16 by person in authority (s66C(2) Crimes Act) - Whether verdict unsafe and unsatisfactory due to lack of evidentiary support; APPEAL - Against sentence - Whether total of sentences was manifestly excessive - Whether trial judge erred in considering broader context of offences - New sentence; EVIDENCE - Inadequate directions to jury regarding complaint evidence - Failure of trial judge to give adequate warnings in relation to evidence of the complainant - Admissibility of "coincidence" and "tendency" evidence of three former wives - Possibility of concoction - Whether misdirections and inadequate directions given in relation to evidence of former wives - Admissibility of evidence of a third party and whether probative - Admissibility of magazine to show knowledge of complainant of sexual matters - Admissibility of evidence of discharge of firearm to show propensity to act on impulse - Admissibility of finding of "not guilty" on sexual assault charges brought against complainant's father - Admissibility of certain specialist gynaecological evidence - Whether rejection of any or all of this evidence led to a miscarriage of justice - Whether probative value outweighed prejudicial effect Crimes Act 1900 ACTS CITED : Evidence Act 1995 Criminal Appeal Act 1912 Hoch v The Queen (1988) 165 CLR 292 R v Johnston (1998) 45 NSWLR 362 Longman v The Queen (1989) 168 CLR 79 R v Pfennig (1995) 182 CLR 461 CASES CITED: Robertson (1997) 91 A Crim R 388 BRS v The Queen (1997) 191 CLR 275 R v BD (1997) 94 A Crim R 131 Gipp v The Queen (1988) 194 CLR 106 H (1994) 74 A Crim R 41 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence upheld; Sentence varied