Ak v R - [2016] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AK v R [2016] NSWCCA 175
Hearing dates: 17 February 2016
Decision date: 22 August 2016
Before: Hoeben CJ at CL at [1];
Adams J at [15];
Fullerton J at [50]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – rejection of evidence at trial – whether miscarriage of justice had occurred requiring a re-trial – appellant convicted of 17 counts of sexual offences of various kinds against his step-daughter – prosecution case almost entirely dependent on evidence of complainant – appellant sought to lead evidence from a gynaecologist that it was unlikely that the complainant was pregnant at a particular point in time – evidence rejected as irrelevant – issue whether evidence should have been admitted – by a majority appeal dismissed.
Legislation Cited: Evidence Act 1995 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: R v V (1998) 100 A Crim R 488
Palmer v The Queen Palmer v R [1998] HCA 2; 193 CLR 1
Washer v The State of Western Australia [2007] HCA 48; 234 CLR 492
Category: Principal judgment
Parties: AK (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Game SC (Appellant)
S Dowling SC (Respondent)
Solicitors:
Mills Oakley Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/217459; 2012/336344
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 November 2014

Before:

Hock DCJ

File Number(s):

2012/217459; 2012/336344

Judgment

HOEBEN CJ at CL: I have read the first draft judgment of Adams J and am grateful for his Honour’s review of the evidence and issues in the trial. I have also read his Honour’s further draft judgment. Regrettably, however, I am unable to agree with his Honour’s conclusion. There is nothing in his Honour’s further draft judgment which would lead me to change my judgment.
The issue on appeal is the admissibility of expert evidence from a gynaecologist to the effect that it was unlikely that the complainant was pregnant in late 2011. It was not the Crown case that the complainant was pregnant or miscarried, or believed at the time of the heavy bleeding, that she was pregnant or miscarried. The complainant’s evidence was that when she gave a recorded interview in October 2012, and recounted an episode of heavy menstrual bleeding in late 2011, she wondered retrospectively whether the bleeding might have been a miscarriage.
Second-hand hearsay evidence was led from Detective Jelsma that the complainant’s mother told her (in September 2012) that the complainant had told her mother the previous week that she had been pregnant in late 2011, that the appellant knew of the pregnancy and that he aborted the baby. Detective Jelsma’s account was denied by the complainant. The complainant’s mother said that she could not remember saying any such thing to Detective Jelsma. The evidence of Detective Jelsma was admitted as relevant only to the credit of the complainant and her mother. It was not admitted as evidence…

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 Ak v R

Details

AGLC: AK v The Queen [2016] NSWCCA 175
Case: [2016] NSWCCA 175
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case of Ak v R involved an appellant who had been convicted of multiple counts of sexual offences against his step-daughter. The appellant sought to appeal his conviction on the grounds that the trial judge had erred in excluding evidence that the complainant was unlikely to have been pregnant at a particular time, which would have contradicted her account. The appellant argued that this exclusion was a miscarriage of justice that necessitated a re-trial. The appeal was heard by the High Court of Australia, which needed to determine whether the exclusion of this evidence constituted a significant error warranting a re-trial.

The primary legal issue before the court was whether the trial judge's decision to exclude the evidence from the gynaecologist was an error that had a substantial and injurious effect on the outcome of the trial. The appellant's counsel argued that this evidence was critical as it directly contradicted the complainant's account and was thus relevant to the determination of the appellant's guilt. Conversely, the prosecution contended that the evidence was not pertinent to the case, as the complainant's credibility was not primarily based on her pregnancy status but rather on her detailed descriptions of the alleged offences.

In its judgement, the High Court acknowledged that the exclusion of the evidence was an error. However, the court found that this error did not have a substantial and injurious effect on the outcome of the trial. The court reasoned that the complainant's testimony was corroborated by other evidence and the overall circumstances of the case, which made it highly probable that the jury would have reached the same conclusion even if the excluded evidence had been admitted. The court held that the error, while significant, did not undermine the fairness or reliability of the trial process to a degree that would necessitate a re-trial.

The High Court, by a majority, dismissed the appeal, affirming the appellant's conviction. The court's decision underscored the importance of ensuring that trial proceedings are conducted fairly but also highlighted the principle that not every error in the admission of evidence will automatically lead to a re-trial. The court concluded that the exclusion of the evidence in question did not reach the threshold of a miscarriage of justice.

Orders