ARS v R

Case [2011] NSWCCA 266


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: ARS v R [2011] NSWCCA 266
Hearing dates:12 September 2011
Decision date: 09 December 2011
Before: 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
Legislation Cited: Court of Appeal Act 1912
Crimes Act 1900 ss 61, 61J,61M, 66C, 66EA
Criminal Appeal Act 1912, ss 5, 6
Evidence Act 1995 s 138
Listening Devices Act 1984
Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223
Cheung v R [2001] HCA 67; (2001) 209 CLR 1
Darwiche v R [2011] NSWCCA 62
Emery v R [1999] TASSC 141; (1999) 110 A Crim R 221
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Glennon v R [1994] HCA 7; (1994) 179 CLR 1
HML v R [2008] HCA 16; (2008) 235 CLR 334
KBT v R [1997] HCA 54; (1997) 191 CLR 417
KRM v R [2001] HCA 11; (2001) 206 CLR 221
L'Estrange v R [2011] NSWCCA 89
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Picken v R [2007] NSWCCA 319
R v D (1997) 69…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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