Regina v GNK [2004] NSWCCA 114

New South Wales Court of Criminal Appeal

CITATION : Regina v GNK [2004] NSWCCA 114 revised - 05/05/2004 HEARING DATE(S) : 9 March 2004 JUDGMENT DATE : 27 April 2004

JUDGMENT OF : Spigelman CJ at 1; Kirby J at 2; Smart AJ at 43 DECISION : Appeals against conviction dismissed.

CATCHWORDS : Verdicts on counts 7 and 8 (attempted homosexual intercourse and homosexual intercourse) reasonably supported by the evidence - judge's discretion did not miscarry in declining to allow complainant to be further cross-examined - directions as to complaint evidence not inadequate - judge put defence case sufficiently and his directions as to the credibility and reliability of the evidence of the complainant and the evidence were not inadequate LEGISLATION CITED : Criminal Appeal Act, 1912 Crimes Act, 1900 R v Markuleski (2001) 125 A Crim R 186, (2001) 52 NSWLR 82 AT [191] CASES CITED : M v The Queen (1994) 181 CLR 487 at 492-4 MFA v The Queen (2001) 193 ALR 184 at 198, [2002] HCA 53 Gipp v The Queen (1998) 194 CLR 106 at 114 PARTIES : Regina v GNK FILE NUMBER(S) : CCA 60349/03 COUNSEL : (A) P Byrne SC & G Bashir (C) D Frearson SOLICITORS : (A) G Fabiani C) S Kavanagh

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0216 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60349/03 SPIGELMAN CJ KIRBY J SMART AJ Tuesday, 27 April 2004 Regina v GNK Judgment 1. SPIGELMAN CJ: I agree with Smart AJ.

2. KIRBY J: I have had the advantage of reading the judgment of Smart AJ in draft. His Honour considered each of the eight grounds of appeal and found no substance in any of them. He proposed that the appeal be dismissed. I have, however, formed a different view on two of the grounds; ground 8 (that the verdicts of the jury on counts 7 and 8 are unreasonable) and the application to recall the complainant (the "additional appeal ground" in the judgment of Smart AJ, para 95). I am led to the conclusion that the appeal should succeed.