Medium Neutral Citation: Abbott (a pseudonym) v R [2017] NSWCCA 149
Hearing dates: 18 April 2017
Decision date: 28 June 2017
Before: Basten JA at [1];
McCallum J at [29];
Fagan J at [30]
Decision:
1. Leave to appeal is granted in respect of all grounds.
2. The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – appellant charged with 6 counts of indecent assault against 2 child complainants contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to order separate trials in respect of each complainant – cross-admissibility of complainants’ evidence as tendency and context evidence – nature of context evidence – whether appellant had been prejudiced by trial on all counts – use of directions to ameliorate potential prejudice

CRIMINAL LAW – appeal against conviction – appellant convicted of 6 counts of indecent assault against child under 16 contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to discharge jury where complainant did not answer questions in cross examination – whether appellant denied a fair trial – where unanswered questions did not take account of previous answers – cross examination of child complainants
CRIMINAL LAW – appeal against conviction – whether trial judge erred in failing to discharge jury on the basis of impermissible communications with witness under cross examination – whether communications calculated to corrupt the witness’s testimony – whether convictions were unreasonable or unsupported by the evidence
Legislation Cited: Crimes Act 1900 (NSW), s 61M
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 29, 306U
Evidence Act 1995 (NSW), ss 11, 13, 55, 97, 137
Cases Cited: DeVries v The Queen [2013] VSCA 210
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Hoch v The Queen (1988) 165 CLR 292
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
International Relief and Development Inc v Ladu [2013] FCA 1216
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Potier v R [2015] NSWCCA 130
Qualtieri v Regina [2006] NSWCCA 95; 171 A Crim R 463
R v Barton [2004] NSWCCA 229
R v Belford & Bound [2011] QCA 43; 208 A Crim R 256
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Verma v R (1987) 30 A Crim R 441
Versi v R [2013] NSWCCA 206
Category: Principal judgment
Parties: Abbott (a pseudonym) (appellant)
Regina (respondent)
Representation:
Counsel:
Mr Braddon Hughes SC/Ms Maeve Curry (appellant)
Ms Helen Roberts (respondent)
Solicitors:
M Cronin (appellant)
C Hyland, Office of the Director of Public Prosecutions (respondent)

File Number(s): 2013/345934
Publication restriction: Pursuant to s 7 of the

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 Abbott (a pseudonym) v The Queen

Details

AGLC: Abbott (a pseudonym) v The Queen [2017] NSWCCA 149
Case: [2017] NSWCCA 149
Decision Date: 28 June 2017

CaseChat Overview and Summary

The case of Abbott (a pseudonym) v The Queen involved an appeal against the appellant's conviction on six counts of indecent assault against two child complainants. The charges were brought under section 61M(2) of the Crimes Act 1900 (NSW). The appeal raised several issues pertaining to the conduct of the trial, including the refusal of the trial judge to order separate trials for each complainant, the cross-admissibility of the complainants' evidence, and the handling of the jury's interactions with the witnesses during cross-examination.

The primary legal issues before the court were whether the trial judge erred in refusing to order separate trials, and whether the cross-admissibility of the complainants' evidence as both tendency and context evidence prejudiced the appellant. The court also needed to determine if the appellant was denied a fair trial due to the complainant's refusal to answer questions during cross-examination and the alleged improper communications between the jury and a witness. The court examined whether these issues, individually and collectively, led to an unreasonable or unsupported conviction.

In its decision, the court held that the trial judge did not err in refusing to order separate trials, as the evidence was cross-admissible as both tendency and context evidence. The court found that the context evidence did not unfairly prejudice the appellant and that the nature of the context evidence was such that it did not lead to an unfair trial. Regarding the unanswered questions during cross-examination, the court determined that the complainant's refusal to answer did not amount to a denial of a fair trial. The court also found that the alleged communications between the jury and a witness did not corrupt the witness's testimony. Consequently, the court concluded that the convictions were neither unreasonable nor unsupported by the evidence.

The appeal was dismissed, and the convictions were upheld. The court did not order any further action in relation to the trial or the convictions.

Orders