Bathurst CJ at [1]; James J at [236]; Johnson J at [237]
Decision:
(1) Leave to appeal against conviction granted, appeal dismissed.
(2) Leave to appeal against sentence granted, appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether trial unfair due to structure of indictment
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether jury required to specify the three incidents supporting a conviction under s 66EA
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether acts supporting charges were sufficiently particularised
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether relationship evidence, context evidence and evidence of uncharged acts was misused by the jury
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether charges bad for latent duplicity
CRIMINAL LAW - appeal - conviction - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - whether insufficient evidence to leave charges to the jury
CRIMINAL LAW - appeal - sentence appeal - appellant convicted of persistent sexual abuse of a child under s 66EA of the Crimes Act 1912 - where jury did not specify the particular acts relied upon for conviction - whether sentencing judge required to sentence on the basis of all laid charges
EVIDENCE - admissibility - where complainant covertly recorded conversation with the appellant - whether evidence admissible under Evidence Act s 138
[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.
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AGLC
ARS v R [2011] NSWCCA 266
Case
[2011] NSWCCA 266
Decision Date
CaseChat Overview and Summary
The appellant, ARS, appealed against his conviction and sentence for persistent sexual abuse of a child under 16, as well as the admission of a covertly recorded conversation between the appellant and the complainant. The appeal was heard by the High Court of Australia. The appellant's appeal was based on multiple grounds, including the structure of the indictment, the requirement for the jury to specify the incidents supporting the conviction, the sufficiency of particularisation of the acts supporting the charges, the misuse of relationship, context and uncharged acts evidence by the jury, the possibility of latent duplicity in the charges, the sufficiency of evidence to leave the charges to the jury, and the sentencing process.
The court examined the structure of the indictment and found it did not render the trial unfair. The court held that the jury was not required to specify the three incidents supporting the conviction under s 66EA. The court also found that the acts supporting the charges were sufficiently particularised. The court held that the relationship, context, and uncharged acts evidence was not misused by the jury. The court found that the charges were not bad for latent duplicity, and there was sufficient evidence to leave the charges to the jury. The court held that the sentencing judge was required to sentence on the basis of all laid charges, even though the jury did not specify the particular acts relied upon for conviction.
The court allowed the appeal on the ground that the covertly recorded conversation was inadmissible under s 138 of the Evidence Act. The court held that the admission of the conversation was a significant error that had a substantial impact on the outcome of the trial. The court quashed the conviction and ordered a retrial. The court also ordered that the appellant be released on bail pending the retrial.