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Allen v R

Allen v R

Case [2020] NSWCCA 173 22 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Allen v R [2020] NSWCCA 173
Hearing dates: 17 April 2020, further written submissions on 20 April 2020, 24 April 2020 and 1 May 2020
Date of orders: 22 July 2020
Decision date: 22 July 2020
Before: Bell P at [1]; Davies J at [115]; Button J at [118]
Decision:
(1)   Appeal allowed.
(2)   Quash the convictions in respect of counts 26-28, 30 and 34-36 of the Indictment.
(3)   Set aside the aggregate sentence imposed.
(4) In respect of counts 2 and 4-25 of the Indictment, resentence the Applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is to be taken to have commenced on 15 March 2017, with an aggregate non-parole period of 12 months that expired on 14 March 2018.
(5)   Order a new trial in respect of counts 26-28, 30 and 34-36 of the Indictment.

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW) ss 17(1), 19
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 58
Criminal Appeal Act 1912 (NSW) ss 5F, 7(1A)
Criminal Appeal Rules (NSW) r 4
Criminal Procedure Act 1986 (NSW) ss 21(2)(a), 29(1), Pt 3 Div 7
Evidence Act 1995 (NSW) ss 97, 98,101, 136, 137

Cases Cited:
Bugg v Day (1949) 79 CLR 442; [1949] HCA 59
Castagna v R [2012] NSWCCA 181
Crofts v R (1996) 186 CLR 427; [1996] HCA 22
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Decision Restricted [2019] NSWCCA 276
Driscoll v R (1977) 137 CLR 517; [1977] HCA 43
DSJ v R; NS v R [2014] NSWCCA 77
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Gilham v R [2012] NSWCCA 131
Hamide v R [2019] NSWCCA 219
Hamilton (a pseudonym) v R [2020] NSWCCA 80
House v R (1936) 55 CLR 499; [1936] HCA 40
Kalabasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7
KRM v R (2001) 206 CLR 221; [2001] HCA 11
McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
Nudd v R (2006) 225 ALR 161; [2006] HCA 9
R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329
R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
R v Christie [1914] AC 545
R v El-Azzi [2004] NSWCCA 455
R v Glennon (1992) 173 CLR 592; [1992] HCA 16
R v Jacobs (No 4) [2013] NSWSC 945
R v Turnbull (No 1) [2016] NSWSC 189
Roach v R [2019] NSWCCA 160
Samadi and Djait v R [2008] NSWCCA 330
Trotter v R [2016] NSWCCA 57
WG v R; KG v R [2020] NSWCCA 155

Category: Principal judgment
Parties: Michael Francis Allen (Applicant)
The Crown (Respondent)
Representation:
Counsel:
R Roger (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW…

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 Allen v R

Details

AGLC: Allen v R [2020] NSWCCA 173
Case: [2020] NSWCCA 173
Decision Date: 22 July 2020

CaseChat Overview and Summary

The Applicant, Michael Francis Allen, was convicted by a jury in the District Court of New South Wales of 30 of the 36 counts with which he had been charged on indictment. The first 25 of these counts were child sex offender register offences, and the remaining counts consisted of allegations of aggravated indecent assault, aggravated acts of indecency, accessing child pornography and grooming in relation to two complainants. The Applicant appealed against his conviction and sentence. The grounds of appeal were that there had been a miscarriage of justice as a result of the trial judge’s refusal to sever the reporting offences from the sexual offence charges, and/or his failure to give sufficiently strong directions to the jury to disregard the fact that he was on the Register in the jury’s consideration of the sexual offence charges. The Court held, granting leave and allowing the appeal: the trial judge did not err in the exercise of his discretion not to sever the reporting offences from the sexual offence charges, but failed to give a sufficiently strong direction to the jury to disregard the fact that the Applicant was on the Register in the jury’s consideration of the sexual offence charges. The failure to give such a direction led to a miscarriage of justice. The Applicant failed to establish that his trial counsel’s failure to address the jury on certain of the reporting offences or in other specific respects was incompetent and gave rise to a miscarriage of justice. The Court quashed the convictions in respect of the sexual offence charges, set aside the aggregate sentence imposed, and ordered a new trial in respect of these counts. The Court resentenced the Applicant to a term of imprisonment for 18 months in respect of counts 2 and 4-25 of the Indictment.

Orders