AC v R

Case [2016] NSWCCA 21 26 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: AC v R [2016] NSWCCA 21
Hearing dates: 21 October 2015
Decision date: 26 February 2016
Before: Hidden J at [1]
Davies J at [2]
Adamson J at [107]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appellant charged with multiple counts of sexual offences and assault offences against young children – evidence of uncharged acts not opposed – tendency evidence – whether evidence of significant probative value – whether probative value outweighed by prejudicial effect – whether inconsistent verdicts – whether verdicts unreasonable
EVIDENCE - tendency evidence – whether acts relied on lacked similarity
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: BP v R; R v BP [2010] NSWCCA 303
Colby v R [1999] NSWCCA 261
Dungay v R [2010] NSWCCA 82
Hughes v R [2015] NSWCCA 330
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 60
O’Keefe v R [2009] NSWCCA 121
Osland v R [1998] HCA 75; (1998) 197 CLR 316
Potts v R [2012] NSWCCA 229
R v Ford [2009] NSWCCA 303; (2009) 201 A Crim R 451
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
Saoud v R [2014] NSWCCA 136
Sokolwskyji v R [2014] NSWCCA 55
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: AC (Appellant)
Crown (Respondent)
Representation:
Counsel:
T Gartelmann & E Anderson (Appellant)
M Cinque (Crown)
Solicitors:
Younes & Espiner Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/269337
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 March 2014

Before:

Huggett DCJ

File Number(s):

2012/269337

Judgment

HIDDEN J: I agree with Davies J.
DAVIES J: The Appellant stood trial before her Honour Judge Huggett and a jury of twelve on the following charges:

Count 1: Sexual intercourse with a child under the age of ten years;

Count 2: Sexual intercourse with a child under the age of ten years;

Count 3: Common assault;

Count 4: Aggravated indecent assault on a child under the age of ten years;

Count 5: Common assault;

Count 6: Assault occasioning actual bodily harm;

Count 7: Assault occasioning actual bodily harm;

Count 8: Sexual intercourse with a child under the age of ten years;

In the alternative:

Count 9: Aggravated indecent assault on a child under the age of 16 years;

Count 10: Assault occasioning actual bodily harm;

Count 11: Common assault.

Counts 1-7 involved the Appellant’s step daughter TF and counts 8-11 involved the Appellant’s daughter MC.
The Appellant was found guilty of counts 1-6 and 10. He was found not guilty of counts 7-9 and 11.
The Appellant was sentenced by Judge Huggett to an aggregate term of imprisonment for 22 years commencing 8 June 2014 and expiring 7 June 2036 with a non-parole period of 15 years expiring 7 June 2029.
The Appellant now appeals and seeks leave to appeal on 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 AC v R

Details

AGLC: AC v R [2016] NSWCCA 21
Case: [2016] NSWCCA 21
Decision Date: 26 February 2016

CaseChat Overview and Summary

The case before the court involved an appellant who had been convicted of multiple counts of sexual offences and assault offences against young children. The appellant was convicted on the basis of evidence of uncharged acts that were not opposed by the defence. The appellant appealed against his conviction, arguing that the trial judge should not have admitted the tendency evidence, that the probative value of the evidence was outweighed by its prejudicial effect, and that the verdicts were inconsistent and unreasonable. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the evidence of the uncharged acts was admissible as tendency evidence, whether the probative value of the evidence outweighed its prejudicial effect, whether the evidence lacked similarity, and whether the verdicts were inconsistent and unreasonable. The court considered whether the evidence of the uncharged acts was relevant to the charges against the appellant, whether the evidence was necessary to make a finding of fact that was of consequence to the determination of the action, and whether the probative value of the evidence outweighed any prejudicial effect it may have had.

The court found that the evidence of the uncharged acts was relevant and necessary to the appellant's case, and that its probative value outweighed any prejudicial effect it may have had. The court also found that the evidence was similar enough to the charged offences to be admissible as tendency evidence. The court rejected the appellant's argument that the verdicts were inconsistent and unreasonable, finding that there was sufficient evidence to support the convictions. The appeal was dismissed.

The High Court of Australia dismissed the appeal and affirmed the convictions of the appellant. The court found that the evidence of the uncharged acts was admissible as tendency evidence, that its probative value outweighed any prejudicial effect, and that the verdicts were consistent and reasonable. The court did not make any orders regarding the appellant's sentence.

Orders