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ABR (a pseudonym) v R

ABR (a pseudonym) v R

Case [2020] NSWCCA 33 6 March 2020

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ABR (a pseudonym) v R [2020] NSWCCA 33
Hearing dates: 11 November 2019
Date of orders: 06 March 2020
Decision date: 06 March 2020
Before: Meagher JA at [1]; Bellew J at [155]; Lonergan J at [156]
Decision:
(1) Extend to 8 August 2019 the time for the applicant, ABR, to file his notice of appeal.

(2) Dismiss ABR’s appeal against conviction of each of the six offences and specifically:

(a) Grant leave where necessary to rely on grounds 1, 2, 3, 4, 5, 6, 11, 12, 18, 19, 20, 21, 22 and 23 and dismiss each of those grounds.
(b) Refuse leave to rely on grounds 7, 8, 9, 10, 13, 14, 15, 16 and 17.
Catchwords:
CRIME – appeals – appeal against conviction – multiple grounds of appeal including unreasonable verdict, alleged incompetence of counsel, asserted miscarriages of justice, argued errors in directions and comments to the jury, argued error in admitting tendency evidence, argued error in finding complainant competent witness – appeal dismissed
EVIDENCE – tendency evidence – criminal proceedings – evidence relied on to prove tendency to have a sexual interest in pre teenage girls – whether significant probative value – where part of defence was that the allegedly intentional conduct was innocent or accidental – whether probative value substantially outweighed prejudicial effect – where prejudicial effect ameliorated by directions and omission of certain material from tender – no error in admission of tendency evidence
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M, 61O
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), ss 275B, 294B, 306U
Evidence Act 1995 (NSW), ss 13, 26, 31, 97, 101, 144, 165, 165A, 191
Cases Cited: AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
BC v R [2015] NSWCCA 327; (2015) 257 A Crim R 340
Browne v Dunn (1893) 6 R 67
Dao v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
DPP (NSW) v RDT [2018] NSWCCA 293
Galea v Galea (1990) 19 NSWLR 263
Gilbert v The Queen (2000) 205 CLR 414; [2000] HCA 15
Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kamali v R [2019] NSWCCA 186
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614;
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

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 ABR (a pseudonym) v R

Details

AGLC: ABR (a pseudonym) v The Queen [2020] NSWCCA 33
Case: [2020] NSWCCA 33
Decision Date: 06 March 2020

CaseChat Overview and Summary

The case of ABR (a pseudonym) v R was heard by the Court of Appeal, where the appellant contested his conviction on multiple grounds. The appellant was found guilty of crimes involving sexual conduct with a child. Issues raised in the appeal included the reasonableness of the verdict, the competence of his legal representation, and alleged miscarriages of justice. The appellant also contended that there were errors in the directions and comments made to the jury, the admission of tendency evidence, and the assessment of the complainant's competency as a witness.

The court examined whether the trial judge erred in admitting evidence of the appellant's tendency to have a sexual interest in pre-teenage girls, considering it was part of his defence that the conduct was either innocent or accidental. The court determined that the probative value of this evidence substantially outweighed any prejudicial effect, particularly since measures were taken to mitigate the latter, such as omitting certain material from the evidence and providing appropriate directions to the jury. The court also assessed the competency of the complainant and the conduct of the trial judge, concluding that no errors were made warranting a new trial.

In light of the above, the Court of Appeal dismissed the appeal. The court held that the verdict was reasonable, the appellant's legal representation was competent, and there were no miscarriages of justice. The court also found that the trial judge did not err in admitting the tendency evidence or in assessing the complainant's competency. The original conviction was upheld, and the appeal was dismissed in its entirety.

The final orders of the Court of Appeal were that the appeal against the conviction be dismissed, and the original conviction and sentence remain in place. The court did not alter any aspect of the trial proceedings or the sentence imposed.

Orders