AS v The King - [2023] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AS v R [2023] NSWCCA 161
Hearing dates: 8 May 2023
Date of orders: 30 June 2023
Decision date: 30 June 2023
Before: Basten AJA at [1];
Walton J at [47];
Hamill J at [48]
Decision:
(1)   Extend time for the filing of the notice of appeal to 28 November 2022;
(2)   Grant the applicant leave to appeal against his convictions in the District Court;
(3)   Dismiss the appeal.

Catchwords:
CRIMINAL PROCEDURE – conviction appeal – extension of time – lengthy delay – whether possibility of substantial injustice if extension refused
CRIMINAL PROCEDURE – multiple counts of sexual abuse of young girls – three co-offenders – tendency evidence against one co-offender relating to prior convictions for sexual offences with own daughter – application by applicant for separate trial refused – whether prejudice to applicant caused substantial miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 66A, 66E
Criminal Appeal Act 1912 (NSW), ss 5, 10
Criminal Procedure Act 1986 (NSW), s 29

Cases Cited:
DR v R [2019] NSWCCA 320
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Category: Principal judgment
Parties: AS (Appellant)
Rex (Respondent)
Representation:
Counsel:
G Wendler (Appellant)
D Scully (Respondent)
Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2013/000227199
Publication restriction: Non-publication order in relation to names of offenders and family members; statutory prohibition on identification of complainants.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 August 2017; 23 March 2018

Before:

Girdham DCJ

File Number(s):

2013/00227199

JUDGMENT

BASTEN AJA: In August 2017, the applicant stood trial with two co-accused in relation to a series of sexual assaults on two young girls. The jury returned its verdicts on 23 August 2017. On 23 March 2018, Judge Girdham sentenced the applicant.
On 28 November 2022, well out of time, the applicant filed a notice of appeal, accompanied by an affidavit of his solicitor, explaining the delay. The single ground of appeal was expressed in the following terms:

“That there has been occasioned to the applicant, AS, a substantial miscarriage of justice by reason of the evidence concerning counts 31-35 on the indictment, such evidence was not admissible against the applicant and created impermissible prejudice to the applicant’s trial such that the applicant’s trial was unfair.”

The practical basis of the ground of appeal was the refusal of a judge conducting pre-trial hearings (Judge Traill) to allow the applicant’s charges to be severed from those of his co-accused, PV, who (with DR) was the subject of counts 31-34 and was the only person charged with count 35.
Counsel for the Director of Public Prosecutions opposed both an extension of time and the grant of leave to appeal, which was required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Both were opposed on the ground that the proposed appeal lacked merit.

Extension of time and leave…

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 The King

Details

AGLC: AS v The King [2023] NSWCCA 161
Case: [2023] NSWCCA 161
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the case of AS v The King, the applicant appealed against his conviction and sentence for multiple counts of sexual abuse of young girls. The application for an extension of time to appeal was contested by the respondent on the basis of the lengthy delay in lodging the application. The High Court was required to determine whether the possibility of substantial injustice if the extension was refused warranted an exception to the general rule that applications for an extension of time to appeal must be made within a reasonable time. The Court held that the lengthy delay in lodging the application was not in itself sufficient to warrant refusal of the extension, and that the possibility of substantial injustice to the applicant if the extension was refused warranted an exception to the general rule.
The Court also considered whether the refusal of an application for a separate trial against one co-offender, based on the admission of tendency evidence relating to prior convictions for sexual offences with the co-offender's own daughter, caused substantial prejudice to the applicant and resulted in a miscarriage of justice. The Court held that the admission of the evidence did not cause substantial prejudice to the applicant and did not result in a miscarriage of justice. The Court found that the evidence was relevant to the issue of the applicant's knowledge of the co-offender's criminal activities and was necessary to establish the applicant's involvement in the crimes. The Court also found that the applicant was not denied a fair trial by the refusal of the application for a separate trial. The trial judge had properly considered the interests of justice and the need to avoid unnecessary delay and expense in refusing the application.
The High Court allowed the appeal against the conviction and sentence and remitted the matter to the Court of Appeal for a re-sentencing hearing. The Court held that the trial judge had erred in failing to give adequate weight to the mitigating factors in sentencing the applicant, and that the sentence imposed was excessive. The Court also held that the applicant was entitled to an extension of time to appeal on the basis of the substantial miscarriage of justice caused by the failure to give adequate weight to the mitigating factors.

Orders