Asiminaris v The King - [2023] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Asiminaris v R [2023] NSWCCA 321
Hearing dates: 8 September 2023
Date of orders: 13 December 2023
Decision date: 13 December 2023
Before: Mitchelmore JA at [1]
Dhanji J at [118]
Sweeney J at [119]
Decision:
(1)   Time be extended to 16 June 2023 for the applicant to file the notice of appeal.
(2)   Leave to appeal is granted.
(3)   The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 66C(1)-(2), 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), s 306I
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:
AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Hawi v R [2014] NSWCCA 83
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA
WG v R; KG v R [2020] NSWCCA 155
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: Katherine Asiminaris (Applicant)
Office of the Director of Public Prosecutions (Respondent)
Representation:
Counsel:
C O’Neill (Applicant)
G Newton SC (Respondent)
Solicitors:
Murphy’s Lawyers Inc (Applicant)
NSW Director of Public Prosecutions (Respondent)

File Number(s): 2017/00154841
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the identity of the complainant or any information that identifies him is prohibited.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

10 August 2020

Before:

Huggett DCJ

File Number(s):

2017/154841

HEADNOTE

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

On 10 August 2020, following a trial in the District Court of NSW, a jury found the applicant, Ms Asiminaris, guilty of two counts of sexual intercourse with a person aged 10 years or over and under 16 years under authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW), and one count of sexual intercourse with a person aged 10 years or over and under 16 years, contrary to s 66C(1) of the Crimes Act.

The Crown case was that the 15 year old…

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 Asiminaris v The King

Details

AGLC: Asiminaris v The King [2023] NSWCCA 321
Case: [2023] NSWCCA 321
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the case of Asiminaris v The King, the appellant was convicted of three counts of sexual intercourse with a child aged over ten but under 16, two of which were committed under authority. The appeal was lodged against the conviction, raising issues about the reliability and sufficiency of the complainant's evidence, the opportunity to develop a close relationship, and the impact of an unexplained matter on the verdict. The court had to determine whether the jury could have reasonably entertained a doubt about the appellant's guilt, given the nature of the complainant's testimony, the lack of detail, and the absence of exploration of certain aspects of the case.

The central legal issues revolved around the inherent unlikelihood and lack of detail in the complainant's evidence, the appellant's opportunity to develop a close relationship with the child, and the unexplained matter that remained unexplored. The court had to examine whether these factors, in combination, could have led a reasonable jury to doubt the appellant's guilt, thereby making the verdict unsafe and unsatisfactory. Additionally, the court considered the impact of a statement made by the appellant to the arresting officer and the alleged location of the third count.

The court found that the inherent unlikelihood and lack of detail in the complainant's evidence, coupled with the unexplored matter, created a reasonable doubt about the appellant's guilt. The opportunity to develop a close relationship with the child did not fully negate these concerns, and the statement to the arresting officer further complicated the assessment of the evidence. Consequently, the court concluded that the jury could have reasonably doubted the appellant's guilt, and the verdict was deemed unsafe and unsatisfactory. As a result, the appeal was allowed, and the convictions were quashed.

Orders