AH v R

Case [2019] NSWCCA 152 9 July 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AH v R [2019] NSWCCA 152
Hearing dates: 4 February 2019
Decision date: 09 July 2019
Before: Simpson AJA at [1]; Button J at [75]; Lonergan J at [76]
Decision:
(1) Leave to appeal against conviction granted;
(2) Appeal dismissed.
Catchwords: CRIME – conviction appeal – where applicant convicted of six counts of aggravated indecent assault but acquitted on two counts – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence
Legislation Cited: Crimes Act 1900 (NSW), s 61J
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 294B, 306U
Jury Act 1977 (NSW)
Cases Cited: Jafary v R [2018] NSWCCA 243
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: AH (Applicant)
Regina (Respondent)
Representation:
Counsel:
F Coyne/W Shukoor (Applicant)
B Baker (Respondent)
Solicitors:
Hammond Nguyen Turnbull (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/372315
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:

15 December 2017

Before:

Frearson DCJ

File Number(s):

2016/372315

HEADNOTE

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

In October 2017, the applicant was charged in the District Court with eight offences of aggravated indecent assault contrary to s 61J of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the complainant, who is the daughter of the applicant’s former wife, was under the age of 16 years.

At the close of the Crown case, on the application of counsel for the applicant, the trial judge directed the jury to return a verdict of not guilty on count 6. After the summing up, the jury returned verdicts of guilty on counts 1, 3, 4, 5, 7 and 8 and not guilty on count 2 and its alternative. The conduct said to constitute counts 1 and 2 occurred at a gathering at the home of the applicant’s aunt in Batemans Bay, and involved digital penetration and penile/vaginal penetration respectively. The applicant was sentenced to an aggregate term of imprisonment of 11 years and 6 months, with a non-parole period of 7 years and 6 months.

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 AH v R

Details

AGLC: AH v R [2019] NSWCCA 152
Case: [2019] NSWCCA 152
Decision Date: 09 July 2019

CaseChat Overview and Summary

The appeal before the court was brought by a person convicted of six counts of aggravated indecent assault, but acquitted on two counts. The jury returned mixed verdicts on two other counts which involved conduct that occurred in close proximity in time. The applicant argued that the mixed verdicts were irreconcilably inconsistent and that the verdicts of guilty were unreasonable and not supported by evidence. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the mixed verdicts were irreconcilable, and if the verdicts of guilty were unreasonable and not supported by evidence. The court was required to determine whether the mixed verdicts were so inconsistent as to be incapable of reconciliation, and whether the verdicts of guilty were unreasonable in the sense that no reasonable jury could have found the applicant guilty on those counts based on the evidence presented. The court also had to consider the principles of jury unanimity and the sufficiency of evidence in the context of mixed verdicts.

The court held that the mixed verdicts were not irreconcilable and that the verdicts of guilty were supported by evidence. The court emphasised that a jury is not required to achieve complete unanimity in their verdicts, and that a majority verdict is sufficient. The court also held that the verdicts of guilty were supported by evidence, as the prosecution had proved the applicant's guilt beyond reasonable doubt. The court noted that the jury was entitled to consider the evidence as a whole and to draw inferences from the facts, and that the verdicts of guilty were not unreasonable or unsafe. The court dismissed the appeal.

The High Court dismissed the appeal and affirmed the applicant's conviction on all counts. The court held that the mixed verdicts were not irreconcilable and that the verdicts of guilty were supported by evidence. The court emphasised the principles of jury unanimity and the sufficiency of evidence in the context of mixed verdicts, and held that the jury's verdicts were consistent and reasonable. The applicant's conviction and sentence were therefore upheld.

Orders