DGB v R [2009] NSWCCA 307

New South Wales Court of Criminal Appeal

CITATION: DGB v R [2009] NSWCCA 307

HEARING DATE(S): 9 December 2009

JUDGMENT DATE: 22 December 2009

JUDGMENT OF: James J at 1; Hulme J at 46; Hidden J at 47

DECISION: Leave under r 4 refused. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW — whether "Murray" direction in relation to counts where there was no supporting evidence was misleading in relation to count where there was supporting evidence

LEGISLATION CITED: Crimes Act Criminal Appeal Rules

CASES CITED : R v Murray (1987) 11 NSWLR 12

PARTIES: DBG - Applicant Regina - Respondent

FILE NUMBER(S): CCA 2008/9393

COUNSEL: S J Odgers SC - Applicant M Cinque - Respondent

SOLICITORS: Creaghe Lisle Solicitors - Applicant S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/9393

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

LOWER COURT DATE OF DECISION: 19/02/2009

IN THE COURT OF CRIMINAL APPEAL 2008/9393

JAMES J RS HULME J HIDDEN J

TUESDAY 22 DECEMBER 2009 DGB v R Judgment 1 JAMES J: DGB appealed against his conviction on one charge of aggravated indecent assault, an offence under s 61M(1) of the Crimes Act, on his stepdaughter, who I will refer to as "the complainant". The circumstances of aggravation under s 61M, as it then stood, were that the complainant was under the age of 16 years. 2 The charge on which the appellant was found guilty was the fourth count in an indictment presented at the appellant's trial. The appellant stood trial on four charges of aggravated indecent assault and two charges of indecent assault, all allegedly committed against the complainant. Two of the charges were charges merely of indecent assault, because the date on which each of the offences had allegedly been committed could not be precisely fixed and might have been after the complainant had attained the age of 16 years. 3 The appellant was found not guilty by the jury on all of the other five charges in the indictment. The verdict of guilty on count four was capable of being explained on the basis that the charge in count four was the only charge on which there was some evidence independent of the complainant which could be regarded as supporting the complainant's evidence.