AK v The King - [2024] NSWCCA 181

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AK v R [2024] NSWCCA 181
Hearing dates: 13 September 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Before: Basten AJA at [1];
Rothman J at [44];
N Adams J at [45]
Decision:
(1) Grant the applicant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – complaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)
Evidence Act 1995 (NSW), ss 38, 91

Cases Cited:
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category: Principal judgment
Parties: AK (Applicant)
Rex (Respondent)
Representation:
Counsel:
G D Woods KC / T F Woods (Applicant)
J Styles (Respondent)
Solicitors:
KPT Defence Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/278775
Publication restriction: Statutory prohibition against publication of matter identifying, or likely to lead to the identification of, the children the subject of the sexual offence proceedings against the applicant
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 402

Date of Decision:

22 September 2023

Before:

Fitzsimmons SC DCJ and jury

File Number(s):

2020/00278775

JUDGMENT

BASTEN AJA: In May 2023, the applicant was found guilty of two counts of having sexual intercourse with a child then under the age of 10, one count of indecent assault on a child under the age of 16 and one count of attempted indecent assault on a child under the age of 16. The child in relation to the three completed offences (counts 1, 2 and 4) was a nephew of the applicant, aged between 4 and 5 years at the time of the two offences of sexual intercourse and between 6 and 7 years at the time of the indecent assault. The attempted indecent assault was committed on another nephew, being the younger brother of the first victim. (The persons involved will be referred to by their relationship: there is a statutory non-publication order with respect to the identity of the children.)
On 22 September 2023, the trial judge, Fitzsimmons SC DCJ, convicted the applicant on each of the charges on which he had been found guilty and imposed an aggregate sentence of imprisonment for four years, six months to date from 23 April 2023 with a non-parole period of two years, four months. By an appeal filed on 5 June 2024, the applicant challenged his convictions on the sole…

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 The King

Details

AGLC: AK v The King [2024] NSWCCA 181
Case: [2024] NSWCCA 181
Decision Date: 27 September 2024

CaseChat Overview and Summary

In the case of AK v The King, the appellant, AK, was convicted of sexual abuse of his two young nephews. The victims, aged between seven and nine years old at the time of the abuse, made complaints to their mother, who was the appellant's former wife. Due to an acrimonious separation and ongoing court proceedings against the father for domestic violence, there was a delay in reporting the matter to the police. The appellant was convicted based on the testimony of the children and their mother, despite challenges to the mother's credibility in the domestic violence trial against the father. The appeal centred on whether the trial was unfair due to the alleged incompetence of the trial counsel and the failure to use evidence from the domestic violence trial to challenge the mother's credibility.

The court was required to determine whether the trial was conducted unfairly due to the appellant's trial counsel's failure to use evidence from the domestic violence trial to challenge the mother's credibility. Additionally, the court had to consider whether the trial counsel's conduct amounted to incompetence. The appellant argued that the failure to use this evidence resulted in a trial that was unfair and that the trial counsel's conduct was incompetent. The court needed to assess the impact of this alleged incompetence on the fairness of the trial and the reliability of the convictions.

The court found that the trial counsel's failure to use evidence from the domestic violence trial to challenge the mother's credibility did not render the trial unfair or amount to incompetence. The court held that the trial counsel had a strategic decision not to use the evidence, and this decision was reasonable given the context of the case. The court emphasised that the trial was fair, and the convictions were reliable despite the mother's credibility being challenged in a separate trial. The appeal was dismissed, and the convictions were upheld.

The court ordered that the appeal be dismissed and that the convictions of the appellant be upheld. No further orders were made.

Orders