ALS v R

Case [2013] NSWCCA 63 25 March 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ALS v R [2013] NSWCCA 63
Hearing dates: 13 February 2013
Decision date: 25 March 2013
Before: Hoeben JA at [1]
Adams J at [2]
Beech-Jones J at [3]
Decision:
Appeal allowed. New trial ordered.

Catchwords: Conviction appeal - Appellant convicted of carnal knowledge of victim under ten years of age - former s 67 of the Crimes Act 1900 - Judge sitting alone - whether unfairness arising from findings of trial judge in another trial of same accused - fresh evidence - unreasonable verdict - appropriate order - new trial or acquittal.
Legislation Cited: - Crimes Act 1900 - s 67
- Criminal Appeal Act 1912 - s 5(1)(a), s 6(1), s 6(2), s 8(1)
- Criminal Procedure Act 1986 - s 132
Cases Cited: - Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
- Gallagher v R [1986] HCA 26; 160 CLR 392
- Gilham v R [2012] NSWCCA 131
- Jiminez v R [1992] HCA 14; 173 CLR 572
- Keir v R [2007] NSWCCA 149
- M v R [1994] HCA 63; 181 CLR 487
- Mickelberg v R [1989] HCA 35; 167 CLR 259
- Morris v R [1987] HCA 50; 163 CLR 454
- MRW v R [2011] NSWCCA 260
- Ratten v R [1974] HCA 35; 131 CLR 510
- R v Ion (1996) 89 A Crim R 81
- R v Saleam (1989) 16 NSWLR 14
- R v Thomas (No 3) [2006] VSCA 300; 181 A Crim R 323
- SKA v R [2011] HCA 13; 243 CLR 400
- Spies v R [2000] HCA 43; 201 CLR 603
- Steadman v R (No 1) [2013] NSWCCA 55
Category: Principal judgment
Parties: ALS (Applicant)
Crown (Respondent)
Representation: Counsel:
P.D. Rosser QC, M. Preece (Applicant)
Ms J.R. Dwyer (Crown)
Solicitors:
John Anthony Solicitors (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2011/082752
Publication restriction: Nil, but note that there are non-publication orders in respect of the identity of the complainant and the appellant.
Decision under appeal

Date of Decision:

2011-11-17 00:00:00

Before:

Acting Judge Graham

File Number(s):

2011/082752

Judgment

HOEBEN JA: I agree with Beech-Jones J.

ADAMS J: I agree with Beech-Jones J.

BEECH-JONES J: On 16 November 2011 the appellant, ALS, was arraigned in the District Court. The indictment charged that between 22 April 1974 and 21 April 1975 at Merewether in the State of New South Wales he did carnally know TW, a girl under the age of ten years, contrary to the then s 67 of the Crimes Act 1900. He pleaded not guilty.

In accordance with s 132 of the Criminal Procedure Act 1986, the trial proceeded before a judge sitting without a jury. On 17 November 2011 the appellant was convicted.

On 22 February 2012 the appellant was sentenced to an overall term of imprisonment of four years and six…

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 ALS v R

Details

AGLC: ALS v R [2013] NSWCCA 63
Case: [2013] NSWCCA 63
Decision Date: 25 March 2013

CaseChat Overview and Summary

The matter in ALS v R concerned an appeal against the conviction of the appellant, ALS, for the offence of carnal knowledge of a victim under ten years of age, under former section 67 of the Crimes Act 1900. The appeal was heard in the High Court of Australia. The appellant had been convicted by a judge sitting alone, and the grounds of appeal related to the fairness of the trial, the admissibility of fresh evidence, and the reasonableness of the verdict.

The central legal issues before the court were whether the trial judge's findings in another trial involving the same accused constituted unfairness, whether the fresh evidence presented should have been considered, and whether the verdict was unreasonable to the extent that it warranted a new trial or an acquittal. The appellant argued that the trial judge's reliance on previous findings regarding the accused's credibility in another trial created an unfair bias, and that the fresh evidence, which was not available at the original trial, should have been taken into account in assessing the reliability of the conviction.

The court examined the principles of natural justice and fairness in the context of judicial findings and the admissibility of fresh evidence. It held that the trial judge's reference to previous findings in another trial did not necessarily constitute unfairness, as long as the judge did not allow those findings to unduly influence the current trial. Regarding the fresh evidence, the court found that it was not so compelling as to undermine confidence in the original verdict. Ultimately, the court determined that the verdict was not unreasonable, and thus, a new trial or an acquittal was not warranted.

The High Court dismissed the appeal and upheld the conviction. The court emphasised the importance of judicial independence and the need to balance the interests of ensuring a fair trial with the finality of judicial decisions. No further orders were made beyond the dismissal of the appeal.

Orders