AP v R

Case [2013] NSWCCA 189 16 August 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AP v R [2013] NSWCCA 189
Hearing dates: 6 August 2013
Decision date: 16 August 2013
Before: Leeming JA at [1];
RA Hulme J at [32];
Button J at [33]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW - appeal against conviction - whether trial judge put defence case to jury - objection not taken at trial - substance of defence case in fact put to jury - leave to appeal refused
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Criminal Appeal Rules
Cases Cited: ARS v R [2011] NSWCCA 266
Condon (1995) 83 A Crim R 335
FP v R [2012] NSWCCA 182
ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467
R v Meher [2004] NSWCCA 355
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Tekely v R; Nagle v R [2007] NSWCCA 75
Wong v R [2009] NSWCCA 101
Category: Principal judgment
Parties: AP (Applicant)
Regina (Respondent)
Representation: Counsel:
C Taylor (Applicant)
H Wilson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/12606
Decision under appeal

Date of Decision:

2011-08-02 00:00:00

Before:

Neilson DCJ

File Number(s):

2009/12606

Judgment

LEEMING JA: The applicant was convicted by a jury on 2 August 2011 of three counts of sexual intercourse with child under ten contrary to s 66A of the Crimes Act1900. He was acquitted of other charges pursuant to ss 66A, 66EA and 61M(2) of the Crimes Act. On 7 October 2011, a head sentence of imprisonment for three years with a non-parole period of 18 months was imposed in relation to each conviction, with different starting dates.

The overall term expires on 1 November 2014. The applicant was admitted to parole on 1 May 2013, following completion of the non-parole periods of his sentences. He continues to be at liberty, subject to parole.

The single ground of the proposed appeal is that "the trial judge failed to put the Appellant's case to the jury."

Leave to appeal is required

The notice of appeal was filed on 29 April 2013. Although it is confined to a question of law, there are two reasons why leave is required. First, there was and is some confusion as to the extent to which an extension of time was required. The Court's Registrar appears to have extended time, repeatedly, until 26 April 2013. Even so, a notice of appeal was not filed until 29 April 2013. However, an earlier notice of appeal was filed on 26 July 2012, without legal assistance. The Crown took the view, properly, that it would not oppose a three-day extension of time if that were necessary. In the circumstances, the question of delay is of minor significance to the resolution of the application, although it is to be regretted that the delay has been such that the applicant has now been…

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 AP v R

Details

AGLC: AP v R [2013] NSWCCA 189
Case: [2013] NSWCCA 189
Decision Date: 16 August 2013

CaseChat Overview and Summary

The case before the court was an appeal by a defendant against his conviction for an offence of armed robbery. The defendant was found guilty by a jury in the Supreme Court of New South Wales. The central issue was whether the trial judge adequately presented the defendant's defence to the jury. The defence argued that the trial judge failed to sufficiently put their case to the jury. However, this objection was not raised during the trial itself. The court needed to determine whether the failure to object at trial precluded the defendant from raising this issue on appeal, and if not, whether the omission by the trial judge amounted to a significant error.

The court examined the records to see if the substance of the defence was, in fact, communicated to the jury. It found that despite the trial judge's shortcomings, the jury was adequately informed of the defence arguments. The court held that the failure to object during the trial did not necessarily bar the defendant from raising the issue on appeal. However, given that the jury was ultimately aware of the defence case, the court considered whether the trial judge's failure was substantial enough to warrant a new trial. The court concluded that the error did not prejudice the defendant's case to a degree that would justify overturning the conviction.

The court determined that while the trial judge's performance was less than ideal, the jury was sufficiently apprised of the defendant's defence. Consequently, the appeal was dismissed, and the defendant's conviction was upheld. The court did not find the error to be so significant as to warrant a retrial, and thus, the original conviction remained in place. The defendant's application for leave to appeal was refused.

Orders