AS v R

Case [2022] NSWCCA 291 21 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AS v R [2022] NSWCCA 291
Hearing dates: 30 September 2022
Decision date: 21 December 2022
Before: Adamson J at [1]; Hamill J at [145]; Cavanagh J at [194]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where discrepancies in evidence about timing — whether discrepancies could be explained by complainant’s age — appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 61M, 61O, 66A
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:
BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387
Coughlan v TheQueen (2020) 267 CLR 654; [2020] HCA 15
Crickitt v R [2018] NSWCCA 240
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
GS v R [2022] NSWCCA 225
JN v R [2019] NSWCCA 287
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Johnston (1998) 45 NSWLR 362
Reed v R [2006] NSWCCA 314
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Z (apseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: AS (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
A Bonnor (Respondent)
Solicitors:
HepMac Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/288621
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 April 2021 (verdict)

Before:

Girdham SC DCJ

File Number(s):

2017/288621

HEADNOTE

[This headnote is not to be read as part of the judgment]

AS (the applicant) was charged with seven offences all related to acts of indecency and sexual intercourse against two children, contrary to s 61M, 61O and 66A of the Crimes Act 1900 (NSW). Following a trial by jury, the applicant was found guilty of five counts (counts 1-5 on the indictment) and found not guilty of two counts (counts 6 and 7 on the indictment). Counts 1 and 2 were alleged to have been committed against F, the applicant’s natural son, and counts 3-7 were alleged to have been committed against G, the son of his former partner.

The following is a summary of the facts in relation to counts 1 and 2. F’s evidence was that when he was between the ages of 3 and 5, the applicant used to play the “whizzle game” with him…

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 AS v R

Details

AGLC: AS v R [2022] NSWCCA 291
Case: [2022] NSWCCA 291
Decision Date: 21 December 2022

CaseChat Overview and Summary

In this case, AS was convicted of sexual offences against a child and appealed against the conviction, arguing the verdict was unreasonable due to discrepancies in the timing of events presented in the evidence. The High Court of Australia was tasked with reviewing the appeal, assessing whether the discrepancies could be explained by the age of the complainant.

The court identified the primary legal issue as whether the discrepancies in the timing of events could be sufficiently explained by the age of the complainant to render the verdict unreasonable. The court noted that discrepancies in evidence are not uncommon in child abuse cases, given the challenges inherent in obtaining testimony from young and vulnerable witnesses. The court further examined the context of the complainant's age and the nature of the alleged offences, assessing the impact on the reliability and consistency of the evidence provided.

After considering the arguments and the evidence, the court found that the discrepancies did not undermine the overall reliability of the complainant’s testimony. The court held that the jury, having heard all the evidence and observed the witnesses, was in the best position to assess the credibility and to resolve any inconsistencies. Consequently, the appeal was dismissed, affirming the conviction. The court did not make any further orders.

Orders