Magrin v Regina [2006] NSWCCA 17

New South Wales Court of Criminal Appeal

CITATION: Magrin v Regina [2006] NSWCCA 17

HEARING DATE(S): 01/02/2006

JUDGMENT DATE: 15 February 2006

JUDGMENT OF: Giles JA at 1; Howie J at 2; Hoeben J at 41

DECISION: Appeal is dismissed.

CATCHWORDS: Criminal Law - cross-examination of accused by prosecutor - whether it could have led to miscarriage by breaching right to silence or tending to shift onus of proof.

CASES CITED: Dyers v The Queen (2002) 210 CLR 285 Maiden and Petty v The Queen (1991) 173 CLR 95

PARTIES: Gregory Allan Magrin v Regina

FILE NUMBER(S): CCA 2005/1645

COUNSEL: D. Woodburne - Crown C. Smith - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3006

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1645

GILES JA HOWIE J HOEBEN J

WEDNESDAY 15 FEBRUARY 2006 Gregory Allan MAGRIN v REGINA Judgment 1 GILES J: I agree with Howie J. 2 HOWIE J: On 16 August 2004 the appellant, Gregory Magrin, stood trial before Judge Ellis and a jury at Parramatta District Court on an indictment containing the following charges:

Count 1: That, on or about 25 December 2002 at Fairfield in the State of New South Wales, he did have sexual intercourse with [LH], a child then under the age of 10 years, namely 6 years (Crimes Act s 61A).

Count 2: [in the alternative to Count 1] That on or about 25 December 2002 in Fairfield in the State of New South Wales, he did assault [LH] and at the time of that assault did commit an act of indecency on [LH], a child then under the age of 10 years, namely 6 years (Crimes Act s 61M(2)). 3 A verdict of guilty in relation to Count 1 was returned on 25 August 2004 and, as a result, it was unnecessary to take a verdict in relation to Count 2. On 16 December 2004 the appellant was sentenced to imprisonment for 5 years with a non-parole period of 3 years. 4 The appellant appeals against his conviction and there is no application for leave to appeal against sentence. There was a single ground of appeal argued before the Court being: