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
[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.
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AGLC
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.