GBB v R [2019] NSWCCA 296

GBB v R [2019] NSWCCA 296

The convictions were upheld because the trial judge, sitting without a jury, was entitled and required to assess the reliability and weight of all parts of the complainant's evidence, including the police interview, the in-court retractions and the early complaint evidence, and her reasons showed that she undertook the assessment that any proper warning would have required; no miscarriage of justice or procedural unfairness was shown. The sentence appeal was dismissed because the sentencing judge took the appellant's youth, disabilities, reduced moral culpability, rehabilitation, custody alternatives and objective seriousness into account, and the denunciatory language did not demonstrate...

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Criminal Appeal Against Convictions and Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From District Court Convictions and Sentence
Outcome
Leave to appeal against convictions and sentence granted to the extent necessary; appeals against convictions and sentence dismissed; bail revoked if it did not cease by operation of statute; appellant directed to be taken into custody.
Legal Topics
['sexual Intercourse With Child Under 10' 'judge Alone Trial' 'unreliable Evidence Warnings' "children's Evidence" 'procedural Fairness' 'unreasonable Verdict' 'sentencing of Young Offender With Intellectual and Psychological Disabilities' 'denunciation and General Deterrence' 'bail Pending Appeal']
['criminal Law' 'evidence' 'criminal Procedure' 'sentencing'] ['sexual Intercourse With Child Under 10' 'judge Alone Trial' 'unreliable Evidence Warnings' "children's Evidence" 'procedural Fairness' 'unreasonable Verdict' 'sentencing of Young Offender With Intellectual and Psychological Disabilities' 'denunciation and General Deterrence' 'bail Pending Appeal']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From District Court Convictions and Sentence

Legal Issues

  1. 1 ["Whether the trial judge erred in directing herself that the complainant's in-court testimony was unreliable pursuant to s 165 of the Evidence Act 1995 (NSW)." "Whether procedural unfairness arose because counsel was not informed during cross-examination that the trial judge might treat the complainant's retractions as unreliable or because further questioning was not adjourned." 'Whether the verdicts on the two counts were unreasonable.' "Whether the sentencing judge erred by giving weight to denunciation notwithstanding the appellant's mental illness and vulnerabilities, and whether full-time custody was warranted."]

Ratio Decidendi

The convictions were upheld because the trial judge, sitting without a jury, was entitled and required to assess the reliability and weight of all parts of the complainant's evidence, including the police interview, the in-court retractions and the early complaint evidence, and her reasons showed that she undertook the assessment that any proper warning would have required; no miscarriage of justice or procedural unfairness was shown. The sentence appeal was dismissed because the sentencing judge took the appellant's youth, disabilities, reduced moral culpability, rehabilitation, custody alternatives and objective seriousness into account, and the denunciatory language did not demonstrate...

Court Disposition

Leave to appeal against convictions and sentence granted to the extent necessary; appeals against convictions and sentence dismissed; bail revoked if it did not cease by operation of statute; appellant directed to be taken into custody.

Orders

  • ['To the extent necessary, grant the appellant leave to appeal against his convictions on two counts of sexual intercourse with a child under the age of 10 years.' 'Dismiss the appeal against the convictions.' 'Grant the appellant leave to appeal against the sentence imposed on him in the District Court on 14 June...