Agnew v R - [2024] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Agnew v R [2024] NSWCCA 5
Hearing dates: 18 October 2023
Date of orders: 9 February 2024
Decision date: 09 February 2024
Before: Price J at [1]; Lonergan J at [178]; Dhanji J at [179]
Decision:
(1) Grant the applicant an extension of time within which to seek leave to appeal against his convictions.
(2) Grant the applicant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – Appeals – Appeal against conviction – two counts of sexual intercourse without consent – whether trial judge failed to properly direct the jury on all the elements of the offence – concession by the applicant’s trial counsel that there was no issue as to consent or knowledge of lack of consent – no request for further directions at trial – whether further directions were required – whether miscarriage of justice – whether verdicts were unsafe and unsatisfactory – inconsistencies in evidence of Crown witnesses – whether complainant had motive to fabricate her evidence – whether inconsistencies and discrepancies lead to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), s 5(1)
Evidence Act 1995 (NSW), s 165

Cases Cited:
Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Gregory Agnew (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Nicholson (Respondent)
Solicitors:
RHA Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/136166
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

01 June 2021

Before:

McLennan SC DCJ

File Number(s):

2019/136166

HEADNOTE

[This headnote is not to be read as part of the judgment]

Gregory James Agnew (‘the applicant’) sought leave to appeal against his convictions for two sexual offences involving the complainant, LW, following a trial by jury before McLennan SC DCJ. Each of the offences were alleged to have been committed on the evening of 24 November 2018 when the complainant was 16 years old and staying overnight at a friend’s caravan in Kyogle. On 1 June 2021, the applicant was found guilty of two counts of sexual intercourse without consent. The applicant’s case at trial was that the sexual offending did not occur…

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 Agnew v R

Details

AGLC: Agnew v R [2024] NSWCCA 5
Case: [2024] NSWCCA 5
Decision Date: 09 February 2024

CaseChat Overview and Summary

The applicant, Agnew, appealed against his conviction on two counts of sexual intercourse without consent. The case was heard by the High Court of Australia. The applicant argued that the trial judge did not properly direct the jury on all the elements of the offence. The key issue was whether the trial judge's directions were adequate and whether the verdicts were unsafe and unsatisfactory due to inconsistencies in the evidence of Crown witnesses and the possibility that the complainant had a motive to fabricate her evidence.

The court considered whether the trial judge's directions were sufficient, given the concession by the applicant’s trial counsel that there was no issue as to consent or knowledge of lack of consent. The court noted that no request for further directions was made at trial. It was argued that further directions were necessary, but the court found that the trial judge's directions were adequate in the circumstances. The court also examined whether the inconsistencies in the evidence and the possibility of fabrication led to a miscarriage of justice or resulted in the jury acting irrationally. The court concluded that the jury had enough evidence to make a rational decision and that the verdicts were safe and satisfactory.

The court held that the trial judge's directions to the jury were sufficient, and the verdicts were not unsafe or unsatisfactory. The inconsistencies in the Crown's evidence and the potential for fabrication did not lead to a miscarriage of justice. The court dismissed the appeal.

Orders