AB v R

Case [2022] NSWCCA 104 25 May 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AB v R [2022] NSWCCA 104
Hearing dates: 27 April 2022
Decision date: 25 May 2022
Before: Adamson J at [1]; Wright J at [101]; Dhanji J at [105]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The convictions on counts 1 and 2 on the indictment be quashed.
(4)   A new trial be ordered.
(5)   The matter is to be listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am.

Catchwords:
CRIME — Appeals — Appeal against conviction — whether trial judge reversed onus of proof — where trial judge stated Ewen and Murray directions — where no incorrect statement of principle
CRIME — Appeals — Appeal against conviction — whether inconsistencies in evidence were not taken into account by trial judge — whether reasons adequately addressed inconsistencies in evidence
CRIME — Appeals — Appeal against conviction — whether evidence of sexualised conduct taken into account by trial judge in the absence of findings — whether all evidence needs to be addressed irrespective of significance
CRIME — Appeals — Appeal against conviction — Unreasonable verdict

Legislation Cited:
Crimes Act 1900 (NSW), ss 66A, 66EB
Criminal Appeal Act1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), ss 133, 293A, 294AA

Cases Cited:
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ewen v R [2015] NSWCCA 117
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Hopgood v R [2019] NSWCCA 246
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
R v BK [2022] NSWCCA 51
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Texts Cited:
Criminal Trials Bench Book
Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866)
Lord Devlin, Trial by Jury (rev ed, 1966)

Category: Principal judgment
Parties: AB (Applicant)
Regina (Respondent)
Representation:
Counsel:
E Kerkyasharian / K Lloyd (Applicant)
G Wright SC (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/316869
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 July 2020; 3 December 2020

Before:

Traill DCJ

File Number(s):

2018/316869

Judgment

ADAMSON J: Following a trial by judge alone, AB (the applicant) was convicted by Traill DCJ…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v R

Details

AGLC: AB v R [2022] NSWCCA 104
Case: [2022] NSWCCA 104
Decision Date: 25 May 2022

CaseChat Overview and Summary

The appellant, AB, appealed against his conviction on the grounds that the trial judge erred in several respects. The trial judge was alleged to have reversed the onus of proof, failed to adequately address inconsistencies in the evidence, and overlooked evidence of sexualised conduct. The appeal was heard in the High Court of Australia. The central legal issues were whether the trial judge correctly applied the Ewen and Murray directions, if the reasons provided adequately addressed the inconsistencies in the evidence, and whether the trial judge appropriately considered the evidence of sexualised conduct in the absence of specific findings.

The High Court found that the trial judge did not reverse the onus of proof as the Ewen and Murray directions were correctly applied. The court noted that the trial judge did not make any incorrect statements of principle. Regarding the inconsistencies in the evidence, the court held that the trial judge's reasons sufficiently addressed the inconsistencies, thereby meeting the required standard. The court also held that the trial judge was not required to address all evidence irrespective of its significance. The court emphasised that the trial judge was entitled to form a view based on the evidence presented and did not need to address every piece of evidence explicitly. The court concluded that the verdict was not unreasonable, as the trial judge's reasoning was sound, and the evidence supported the conviction.

The High Court dismissed the appeal, upholding the conviction. The court's decision was based on its finding that the trial judge correctly applied the law and adequately addressed the issues raised in the appeal. The trial judge's handling of the evidence, including the inconsistencies and the evidence of sexualised conduct, was deemed appropriate. The court found no merit in the appellant's arguments and affirmed the conviction.

Orders