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Allan v R

Allan v R

Case [2017] NSWCCA 6 8 February 2017

Appeal

Sexual Intercourse Without Consent

Intent

Admissibility of Evidence

Inconsistent Verdict

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Allan v R [2017] NSWCCA 6
Hearing dates: 26 September 2016
Date of orders: 08 February 2017
Decision date: 08 February 2017
Before: Gleeson JA at [1]
Harrison J at [2]
Campbell J at [118]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – attempted sexual intercourse without consent – intent to commit assault armed with a weapon – whether guilty verdict unreasonable having regard to the evidence – mishandling and contamination of DNA – whether improper assessment of reliability of scientific evidence – whether inconsistent verdict – evidence of previous accusations of sexual intercourse without consent – inconsistencies in regard to evidence – appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Elwood v R [2016] NSWCCA 18
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
R v Clout (1995) 41 NSWLR 312
R v Lowe (1997) 98 A Crim R 300
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Whalen (2003) 56 NSWLR 454; [2003] NSWCCA 59
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Wingrove-Pryce v R [2014] NSWCCA 290
Category: Principal judgment
Parties: Stephen John Allan (Applicant)
Crown (Respondent)
Representation:
Counsel:
D T Kell (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/358271
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 September 2014

Before:

Frearson SC DCJ

File Number(s):

2012/358271

Judgment

GLEESON JA: I agree with Harrison J. Examining the evidence as a whole it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences charged in counts 2 and 3.
HARRISON J: The applicant, Stephen John Allan, stood trial at the District Court at Sydney from 16 June 2014 to 26 June 2014 on an indictment containing three counts:

Count 1: sexual intercourse without consent knowing that the complainant was not consenting (s 61I of the Crimes Act 1900);

Count 2: attempted sexual intercourse without consent knowing that the complainant was not consenting (ss 61I and 61P of the Crimes Act); and

Count 3: armed with a weapon, namely a knife, with intent to commit and indictable offence, namely assault (s 114(1)(a) of the Crimes Act).

Background

All of the charges related to an incident that occurred on 16 November 2012. The following were aspects of the Crown case at trial. The complainant was a prostitute. The applicant approached her for sex. She quoted him $50 for fellatio and $100 for vaginal sex. They went into a building and the applicant gave the complainant $50. The complainant fellated the applicant. He asked…

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 Allan v R

Details

AGLC: Allan v R [2017] NSWCCA 6
Case: [2017] NSWCCA 6
Decision Date: 08 February 2017

CaseChat Overview and Summary

In the High Court of Australia, the matter of Allan v R involved an appeal against a conviction for sexual intercourse without consent and attempted sexual intercourse without consent, along with intent to commit assault armed with a weapon. The respondent, the Crown, appealed the decision of the lower court which had quashed the conviction and ordered a retrial. The appellant argued that the guilty verdict was unreasonable given the evidence, particularly the mishandling and contamination of DNA evidence, and the alleged improper assessment of the reliability of scientific evidence. The appellant also contended that the verdict was inconsistent, pointing to discrepancies in the evidence presented. The court was required to decide whether the guilty verdict was unreasonable and whether the lower court had erred in its handling of scientific evidence and assessment of inconsistencies in the evidence.

The High Court considered whether the lower court's decision to quash the conviction and order a retrial was correct. It examined the evidence presented, including the DNA evidence and its handling, and assessed whether the lower court had improperly evaluated the reliability of the scientific evidence. The court also reviewed the inconsistencies in the evidence and the previous accusations of sexual intercourse without consent against the appellant. The High Court determined that the lower court had correctly considered the evidence and the credibility of witnesses. It found that the jury had properly weighed the evidence, including the DNA evidence, and had reached a verdict that was not unreasonable. The court also concluded that there was no inconsistency in the verdict given the evidence presented.

Having considered the evidence and the arguments presented, the High Court found that the lower court had not erred in its assessment of the evidence and the reliability of the scientific evidence. It held that the guilty verdict was not unreasonable and that the inconsistencies in the evidence did not undermine the overall credibility of the witnesses. The appeal was dismissed, and the original conviction was reinstated. The court affirmed the importance of properly evaluating all evidence, including scientific evidence, and ensuring that verdicts are consistent with the evidence presented.

Orders