AL v R

Case [2017] NSWCCA 34 22 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: AL v Regina [2017] NSWCCA 34
Hearing dates: 27 February 2017
Decision date: 22 March 2017
Before: Leeming JA, Schmidt J, Wilson J
Decision:
(1)   Leave granted to appeal on grounds 1 and 3.
(2)   Leave to appeal on grounds 2 and 4 is refused.
(3)   Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – three counts of sexual intercourse with a child under the age of 10 – complainant aged 4 to 5 – delay in bringing prosecution – whether trial judge failed to appropriately warn jury as to unreliability of complainant’s evidence – s 165 Evidence Act direction – Murray direction - capacity of jury to assess evidence given in denial of charges – whether trial judge failed to adequately direct jury as to the burden and standard of proof – whether trial judge failed adequately to direct jury as to the accused’s evidence – child accused – whether trial judge failed to adequately direct jury on question of doli incapax – RP v The Queen [2016] HCA 53 considered – whether verdict unreasonable or cannot be supported by the evidence – open to jury to find guilt beyond reasonable doubt – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AP v R [2013] NSWCCA 189
Browne v Dunn (1893) 6 R 67
DRE v R [2006] NSWCCA 280; (2006)164 A Crim R 400
Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
Hong v The Queen [2009] NSWCCA 242
Ith v R [2012] NSWCCA 70
JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187
Liberato v The Queen (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; 230 CLR 559
Llewellyn v R [2011] NSWCCA 66
Longman v The Queen (1989) 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
Picker v R [2002] NSWCCA 78
R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46
R v Banic [2004] NSWCCA 322
R v Dennis [1999] NSWCCA 23
R v Germakian (2007) 70 NSWLR 467
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Markuleski (2001) 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
R v N, RC [2012] SASCFC 3; (2012) 112 SASR 399
R v Scott [2004] NSWCCA 254
R v TJ [2009] NSWCCA 257; (2009) 76 NSWLR 167
R v MBX [2013] QCA 214; [2014] 1 Qd R 438
RP v The Queen [2016] HCA 53
RWB v R [2010] NSWCCA 147
SKA v Regina [2012] NSWCCA 205
Stapleton v The Queen (1952) 86 CLR 358
The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013
The Queen v GW [2016] HCA 6
The Queen v M (1977) 16…

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 AL v R

Details

AGLC: AL v R [2017] NSWCCA 34
Case: [2017] NSWCCA 34
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the matter of AL versus the Crown, the appellant was convicted of three counts of sexual intercourse with a child under the age of 10, with the complainant aged between 4 and 5 at the time of the alleged offences. The case was heard in the High Court of Australia, where the appellant sought to appeal against the conviction. The primary legal issues addressed by the court involved the trial judge's handling of the jury's assessment of the complainant's evidence, the adequacy of the directions given to the jury concerning the burden and standard of proof, and the trial judge's instructions regarding the appellant's evidence and the concept of doli incapax.

The court examined whether the trial judge had appropriately warned the jury about the potential unreliability of the complainant's evidence due to the delay in prosecution and the young age of the complainant. It considered whether the Murray direction was adequately applied to assist the jury in assessing the evidence provided in denial of the charges. Furthermore, the court evaluated the trial judge's directions to the jury regarding the burden and standard of proof, and whether they had sufficiently instructed the jury on the accused's evidence and the principle of doli incapax. The court also considered the decision in RP v The Queen [2016] HCA 53 in this regard.

The High Court found that the trial judge had appropriately warned the jury about the potential unreliability of the complainant's evidence and had adequately directed the jury on the burden and standard of proof. The court held that the jury was open to finding the appellant guilty beyond reasonable doubt, and the verdict was not unreasonable or unsupported by the evidence. Consequently, the appeal was dismissed. The court did not find any errors in the trial judge's directions to the jury concerning the appellant's evidence and the concept of doli incapax.

Orders