EK v R [2010] NSWCCA 199

EK v R [2010] NSWCCA 199

Section 21(1) of the Mental Health (Forensic Provisions) Act 1990 requires special hearings to be conducted as if they were criminal trials, thus rules for admissibility of evidence (including s 306I) apply; directions to the jury regarding DNA and context evidence were adequate; treating commission of the offence in the home as an aggravating factor was in error but did not materially affect the sentence.

Parties
Applicant: EK; Respondent: Regina
Jurisdiction
Australia
Judgment Date
08 September 2010
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From District Court (special Hearing Pursuant to S 19 Mental Health (forensic Provisions) Act 1990)
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.
Legal Topics
Sexual Offences, Offences Against the Person, Perverting the Course of Justice, Statutory Interpretation, Appeal – Jury Verdicts – Special Hearing – Mental Health (forensic Provisions) Act, Sentencing – Aggravating Factors
Criminal Law Sexual Offences Offences Against the Person Perverting the Course of Justice Statutory Interpretation Appeal – Jury Verdicts – Special Hearing – Mental Health (forensic Provisions) Act Sentencing – Aggravating Factors

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 24 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

EK

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From District Court (special Hearing Pursuant to S 19 Mental Health (forensic Provisions) Act 1990)

Legal Issues

  1. 1 Whether s 306I(1) of the Criminal Procedure Act 1986 applies to special hearings under s 19 of the Mental Health (Forensic Provisions) Act 1990
  2. 2 Whether the trial judge failed to properly direct the jury in relation to evidence of second pregnancy and DNA evidence
  3. 3 Whether error in finding that it was an aggravating factor that sexual offences were committed in the complainant's home

Ratio Decidendi

Section 21(1) of the Mental Health (Forensic Provisions) Act 1990 requires special hearings to be conducted as if they were criminal trials, thus rules for admissibility of evidence (including s 306I) apply; directions to the jury regarding DNA and context evidence were adequate; treating commission of the offence in the home as an aggravating factor was in error but did not materially affect the sentence.

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.

Orders

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted but appeal dismissed.