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Alexander (a pseudonym) v The Queen

Alexander (a pseudonym) v The Queen

Case [2019] NSWCCA 79 29 April 2019

Appeal

Admissibility of Evidence

Res Judicata

Miscarriage of Justice

Causation

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alexander (a pseudonym) v R [2019] NSWCCA 79
Hearing dates: 6 February 2019
Date of orders: 29 April 2019
Decision date: 29 April 2019
Before: Payne JA at [1]; Button J at [230]; Lonergan J at [231]
Decision:
(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW):
(a)   the appellant shall be identified in connection with these proceedings (including all proceedings in the District Court) by the pseudonym “Alexander” on the ground that this order is necessary to protect the identity of the victim of child sexual assault;

(b)   that publication of any information:

(i)   tending to reveal the identity of Alexander, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or

(ii)   tending to reveal the identity of Alexander’s family in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings

be prohibited;

(c)   the duration of this order be 20 years.

(2)   Order (1) shall apply:

(a)   to all media including but not limited to print, radio, television, internet and social media;

(b)   anywhere in the Commonwealth;

(c)   until 20 years from the date of this order.

(3) Order (2) is made on the ground under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the order is necessary to protect the identity of Alexander’s daughter, the victim of child sexual assault;

(4)   Leave to appeal granted;
(5)   Appeal dismissed.
Catchwords:
CRIMINAL PROCEDURE –Trial – Self-represented accused – judge alone trial on application of self-represented accused – duty of the trial judge to self-represented accused – obligation to ensure a fair trial

CRIME – Appeals – Appeal against conviction –whether primary judge erred in failing to consider whether recorded telephone conversations were unlawfully recorded under the Surveillance Devices Act 2007 (NSW) – whether, if the recorded telephone conversations contravened the Act, the primary judge erred in failing to explain their potential admissibility under s 138 of the Evidence Act 1995 (NSW) – whether failure to do so denied the accused a fair trial – whether miscarriage of justice

CRIME – Appeals – Appeal against conviction – whether Crown case shifted during the trial such that the applicant was denied the ability to deal with an issue – whether miscarriage of justice

CRIME – Appeals – Appeal against conviction – whether primary judge failed to scrutinise the complainant’s evidence with care – whether finding that inconsistencies between the complainant’s first and second accounts of the offending did not affect the complainant’s credibility was correct – whether finding that the complainant was not manipulated to make accusations was correct
CRIME – Appeals – Appeal against sentence – whether, on sentencing, primary judge failed to consider the accused’s “pre-existent symptoms of depression…

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 Alexander (a pseudonym) v The Queen

Details

AGLC: Alexander (a pseudonym) v The Queen [2019] NSWCCA 79
Case: [2019] NSWCCA 79
Decision Date: 29 April 2019

CaseChat Overview and Summary

The case of Alexander (a pseudonym) v The Queen involved an appeal against conviction and sentence. The appellant, self-represented, contested the trial judge's handling of recorded telephone conversations, the consistency of the complainant's evidence, and the adequacy of the sentencing considerations. The Court of Appeal was tasked with determining whether the primary judge failed to ensure a fair trial by not properly addressing these issues. The central legal issues were whether the primary judge erred in not considering the legality of the recorded telephone conversations under the Surveillance Devices Act 2007 (NSW), and whether this omission, along with other alleged errors, denied the appellant a fair trial.

The Court of Appeal examined the primary judge's handling of the recorded telephone conversations, scrutinising whether the judge failed to consider their potential admissibility under s 138 of the Evidence Act 1995 (NSW). The court also assessed if the primary judge adequately scrutinised the complainant's evidence, focusing on whether inconsistencies in her accounts affected her credibility and whether the judge correctly determined that the complainant was not manipulated. Additionally, the court considered whether the Crown's case shifted during the trial, thereby disadvantaging the appellant, and whether the primary judge appropriately weighed the appellant's mental health during sentencing.

The Court of Appeal found that the primary judge did not err in omitting to consider the legality of the recorded conversations under the Surveillance Devices Act 2007 (NSW), as the potential admissibility under s 138 of the Evidence Act 1995 (NSW) was not an issue before the trial. The court concluded that the primary judge's scrutiny of the complainant's evidence was sufficient, and the inconsistencies did not undermine her credibility. The court also determined that the Crown's case did not shift in a manner that prejudiced the appellant. However, the court found that the primary judge did not adequately consider the appellant's pre-existing mental health conditions during sentencing, though it held that this did not result in a miscarriage of justice.

The Court of Appeal dismissed the appeal against conviction and sentence. The court held that, while the primary judge should have better considered the appellant's mental health during sentencing, this did not constitute a miscarriage of justice. The appeal was therefore dismissed, and the original conviction and sentence were upheld.

Orders