EK v R [2010] NSWCCA 199

Reported Decision: 208 A Crim R 157

New South Wales Court of Criminal Appeal

CITATION: EK v R [2010] NSWCCA 199

HEARING DATE(S): 17 May 2010

JUDGMENT DATE: 8 September 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; RA Hulme J at 23

DECISION: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – offences relating to the administration of justice – perverting the course of justice – CRIMINAL LAW – appeal against verdicts of a jury empanelled pursuant to s 19 Mental Health (Forensic Provisions) Act 1990 – whether a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act is, for the purposes of s 306I(1) of the Criminal Procedure Act, "a new trial" or "new trial proceedings" – whether s 306I(1) operates to permit evidence given by complainant in earlier trial to be tendered – whether trial judge failed properly to direct jury in relation to evidence of second pregnancy and DNA evidence – appropriate instructions given – ground without merit, leave to rely upon it refused – whether error in finding it was an aggravating factor that sexual offences were committed in the complainant's home – STATUTES – Acts of parliament – interpretation – general approaches to interpretation – purposive approach – whole Act to be considered – presumptions as to legislative intention

Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Criminal Procedure Amendment (Evidence) Act 2005 Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 Interpretation Act 1987 Mental Health (Forensic Provisions) Act 1990