ALS v The Queen - [2015] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ALS v R [2015] NSWCCA 70
Hearing dates: 15 October 2014
Decision date: 21 April 2015
Before: Macfarlan JA at [1];
Fullerton J at [41];
Bellew J at [120]
Decision:
(1) Appeal allowed.
(2) Quash the appellant’s conviction on the charge contained in the indictment against him dated 25 July 2013.
(3) Enter a verdict of acquittal on that charge.

Catchwords: CRIMINAL LAW – carnal knowledge of a person under 10 years of age – appeal against conviction – appeal allowed – whether verdict was unreasonable or insupportable having regard to the evidence – complainant’s evidence uncorroborated – inconsistent evidence – majority decision – conviction quashed and applicant acquitted
Legislation Cited: Crimes Act 1900 (NSW), s 67
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), s 306B(1)
Evidence Act 1995 (NSW), s 38
Cases Cited: ALS v R [2013] NSWCCA 63
Browne v Dunn (1893) 6 R 67
GL v R [2014] NSWCCA 68
Lachlan Wilson v R [2014] NSWCCA 266
Longman v The Queen [1989] HCA 60; 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
Sami Kurdi v R [2011] NSWCCA 179
SKA v The Queen [2011] HCA 13; 243 CLR 400
Soames v R [2012] NSWCCA 188
Category: Principal judgment
Parties: ALS (Appellant)
Regina (Respondent)
Representation:
Counsel:
P M Strickland SC (Appellant)
T L Smith (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/82752
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

2 August 2013 (conviction)
20 August 2013 (sentence)

Before:

Maiden SC DCJ

File Number(s):

2011/82752

Judgment

MACFARLAN JA: In August 2013 the appellant was convicted after a jury trial of an offence under the then s 67 of the Crimes Act 1900 (NSW) that between 22 April 1974 and 21 April 1975 he carnally knew the complainant who was a person then under the age of 10 years. He was charged with the offence by an indictment dated 25 July 2013. The appellant had previously been convicted of the same offence by a judge sitting without a jury but the conviction was quashed and a new trial ordered ([2013] NSWCCA 63). The basis of those orders was that further evidence, arguably supporting the appellant’s case, had become available since the trial. This evidence comprised a letter written by the complainant and a video recording to which I refer below.
The offence the subject of the charge was alleged to have occurred whilst the complainant was nine years old and to have involved penile vaginal intercourse. Evidence of other alleged sexual conduct of the appellant directed to the complainant was given as contextual evidence.
The appellant’s first ground of…

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 The Queen

Details

AGLC: ALS v The Queen [2015] NSWCCA 70
Case: [2015] NSWCCA 70
Decision Date: 21 April 2015

CaseChat Overview and Summary

In the case of ALS v The Queen, the applicant, ALS, appealed against his conviction for engaging in carnal knowledge of a person under the age of 10 years. The matter was heard and determined in the High Court of Australia. The appellant's challenge centred on the sufficiency of the evidence presented at the trial, specifically the lack of corroboration for the complainant's testimony and the presence of inconsistencies in the evidence given.

The legal issues that arose for the court's determination were whether the verdict reached by the jury was unreasonable or incapable of being supported by the evidence, given the absence of corroboration and the presence of inconsistent testimonies. The court had to weigh the significance of the uncorroborated testimony and the impact of the inconsistencies on the reliability of the evidence presented. The appellant argued that the absence of corroboration and the inconsistencies rendered the verdict unsafe and unsatisfactory.

The High Court, in a majority decision, found that the appellant's conviction was not supported by the evidence. The court held that the complainant's testimony, which was uncorroborated and inconsistent, was insufficient on its own to sustain a conviction for such a serious offence. The majority of the court determined that the inconsistencies and the lack of corroboration led to a substantial miscarriage of justice, resulting in the conviction being quashed and the appellant being acquitted.

Orders