Regina v Gillard [1999] NSWCCA 21

Regina v Gillard [1999] NSWCCA 21

The evidence of complaint admitted at trial did not satisfy the 'freshness' requirement under s 66 Evidence Act 1995 and was therefore inadmissible as an exception to the hearsay rule; nor was the evidence admissible as credibility evidence because no leave was sought or granted under s 108(3). The trial was conducted without proper application of the Evidence Act 1995, and the trial judge failed to direct the jury adequately regarding the effect of delay in complaint on credibility. These errors resulted in a miscarriage of justice, requiring convictions to be quashed and a new trial ordered.

Jurisdiction
Australia
Judgment Date
05 March 1999
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (nsw), Appeal Against Conviction and Sentence After Joint Trial in District Court
Outcome
Appeals allowed; convictions and sentences quashed; new trial ordered.
Legal Topics
['acts of Indecency' 'sexual Assault' 'admissibility of Evidence' 'delay in Complaint' 'evidence Act 1995' 'credibility Evidence']
['criminal Law'] ['acts of Indecency' 'sexual Assault' 'admissibility of Evidence' 'delay in Complaint' 'evidence Act 1995' 'credibility Evidence']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal (nsw), Appeal Against Conviction and Sentence After Joint Trial in District Court

Legal Issues

  1. 1 ["Whether evidence of complaint was admissible under s 66 Evidence Act 1995 due to lack of 'freshness'" 'Whether evidence of complaint was admissible as credibility evidence under s 108(3) Evidence Act 1995' 'Whether delay in complaint and lack of proper direction to jury created miscarriage of justice' "Whether consensual intercourse between husband and wife in the presence of a young person constitutes 'act of indecency' under s 61E(2A) Crimes Act 1900"]

Ratio Decidendi

The evidence of complaint admitted at trial did not satisfy the 'freshness' requirement under s 66 Evidence Act 1995 and was therefore inadmissible as an exception to the hearsay rule; nor was the evidence admissible as credibility evidence because no leave was sought or granted under s 108(3). The trial was conducted without proper application of the Evidence Act 1995, and the trial judge failed to direct the jury adequately regarding the effect of delay in complaint on credibility. These errors resulted in a miscarriage of justice, requiring convictions to be quashed and a new trial ordered.

Court Disposition

Appeals allowed; convictions and sentences quashed; new trial ordered.

Orders

  • ['Appeal allowed' 'Conviction and sentence quashed' 'New trial ordered']