REGINA v ROBERT GEORGE FITZSIMMONS [2001] NSWCCA 59

New South Wales Court of Criminal Appeal

CITATION : REGINA v ROBERT GEORGE FITZSIMMONS [2001] NSWCCA 59 FILE NUMBER(S) : CCA 60166/00 HEARING DATE(S) : 22 February 2001 JUDGMENT DATE : 14 March 2001

PARTIES : REGINA v ROBERT GEORGE FITZSIMMONS JUDGMENT OF : Mason P at 1; Giles JA at 27; Whealy J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2033 LOWER COURT JUDICIAL Keleman DCJ SC OFFICER :

COUNSEL : Appellant: A C Haesler Crown: M C Marien SOLICITORS : Appellant: D J Humphreys Crown: S E O'Connor CATCHWORDS : Criminal appeal - unreasonable verdict - indecent assault - inconsistent verdicts - no question of principle DECISION : 1. Appeal upheld. 2. Conviction quashed. 3. Enter verdict of acquittal.

IN THE COURT OF CRIMINAL APPEAL CCA 60166/2000 MASON P GILES JA WHEALY J Wednesday 14 March 2001

REGINA v Robert George FITZSIMMONS

JUDGMENT 1 MASON P: The appellant was tried in the District Court on an indictment containing two counts: sexual intercourse with a person under the age of 10 years (Crimes Act 1900, s66A) and indecent assault (Crimes Act, s61L). 2 The case presented to the jury was that the two incidents occurred in that sequence and on the same occasion, involving the same complainant who was an eight year old girl at the time. 3 The appellant was found not guilty on the first count and guilty on the second. He was sentenced to perform community service for three hundred hours. 4 The Crown case depended essentially upon the testimony of the complainant. She was a couple of months short of her 16th birthday when she gave evidence at trial. The events in question had occurred in July 1992, shortly after her eighth birthday. The complainant had given her first statement to the police in September 1996 and her second in November 1996. 5 The complainant lived with her parents in Sadlier. She was friendly with another young girl, Carrie, who lived nearby. Carrie lived with her mother Barbara L and her de facto husband, the appellant. 6 The complainant said that one Friday or Saturday night in a period between June and July 1992 she spent the night at Carrie's house. They watched video movies on a video recorder machine. The following morning she and the appellant were sitting watching television in the lounge room. She thought that Carrie was still in bed and that Carrie's mother was out shopping at the time. 7 The complainant said that the appellant told her to get changed because they were going to play a game. She started to do so, but while she still had her t-shirt on, he told her to lie down. She told him that she had to finish getting changed, but he shook her and she lay down. She was asked what then happened and said: And then I lied down and he was on top of me with his pants up and then he was going up and down on me and then after that he undid his pants and ….