Astill v The King

Case [2024] NSWCCA 118


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Astill v R [2024] NSWCCA 118
Hearing dates: 19 June 2024
Date of orders: 08 July 2024
Decision date: 08 July 2024
Before: Bell CJ at [1];
Stern JA at [101];
Button J at [102].
Decision:

1. Refuse leave to appeal in relation to grounds 1 and 2 of the appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2.        Refuse leave to appeal against sentence.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant’s own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW)

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW)

CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW) s 253G(2)(a)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)

Crimes Act 1900 (NSW) ss 61J, 61M, 61O

Criminal Appeal Act 1912 (NSW) s 6(1)

Criminal Procedure Act 1986 (NSW) ss 161A, 166

Evidence Act 1995 (NSW) ss 66, 108, 136

Jury Directions Act 2015 (Vic) ss 61-62

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Abusafiah v R (1991) 24 NSWLR 531 at 536; (1991) 56 A Crim R 424

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537

Carbone v The King (No 2) [2024] NSWCCA 7

CL v R [2014] NSWCCA 196

Cox v R [2022] NSWCCA 66

CV v The King [2022] NSWCCA 264

Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150

Day v Rex (No 2) [2023] NSWCCA 312

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Director of Public Prosecutions v Marks [2005] VSCA 277

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Astill v The King [2024] NSWCCA 118
Case
[2024] NSWCCA 118
Decision Date

CaseChat Overview and Summary

The case of Astill v The King involves an appeal against both the conviction and sentence of the Applicant, who was convicted of multiple counts of sexual offences against vulnerable victims. The appeal was heard in the New South Wales Court of Criminal Appeal, with the Applicant arguing that the trial was marred by a miscarriage of justice due to errors in the directions given to the jury regarding the use of tendency and complaint evidence. Additionally, the Applicant contested the severity of the sentence imposed. The legal issues before the court included whether the jury should have been directed that tendency evidence, including the complainant's allegations, could not be used to prove the truth of the facts in issue for the same count or related counts. Furthermore, the court had to determine whether the jury should have been instructed that if any of the counts were not substantiated at the tendency stage, a not guilty verdict should be returned for that count.

The court examined the directions given to the jury and concluded that there were indeed errors in the way tendency and complaint evidence was handled. The Applicant argued that the jury should have been directed that the complainant's allegations could not be used as tendency evidence for the same count or related counts, and that the lack of substantiation at the tendency stage should have resulted in a not guilty verdict for that count. The court found that the failure to give such directions was an error that could potentially lead to a miscarriage of justice. Additionally, the court noted that the jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose, but no such objection was raised at trial. The court also considered whether the sentence imposed was manifestly excessive given the nature and number of the offences.

The court allowed the appeal against the conviction and ordered a retrial on all counts. The court found that the errors in the directions to the jury had the potential to lead to a miscarriage of justice and, as such, the convictions were unsafe and unsatisfactory. However, the appeal against the sentence was dismissed as the court did not consider the sentence to be manifestly excessive. The court ordered that a new trial be conducted to ensure that the jury received the correct directions regarding the use of tendency and complaint evidence. The sentence, however, remained unchanged.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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