AW v R

Case [2009] NSWCCA 1 30 January 2009

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New South Wales
Court of Criminal Appeal

CITATION: AW v REGINA [2009] NSWCCA 1

HEARING DATE(S): 30 September 2008

JUDGMENT DATE:
30 January 2009

JUDGMENT OF: Bell JA at 1; Latham J at 2; Fullerton J at 58

DECISION: Appeal Dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against conviction on child sexual assault offences - Whether error in Black direction - Whether error in the admission of tendency evidence - Adequacy of Longman direction - Suggestion to jury to approach counts in the indictment sequentially - appeal dismissed.

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Black v The Queen (1993) 179 CLR 44
R v Forbes (2005) 160 A Crim R 1 ; [2005] NSWCCA 377
R v Yuill (1994) 77 A Crim R 314
Picken v R [2007] NSWCCA 319
Longman v The Queen [1989] HCA 60; 168 CLR 79 Crampton v The Queen [2000] HCA 60; 206 CLR 161
Doggett v The Queen [2001] HCA 46; 208 CLR 343 ; R v Johnston (1998) 45 NSWLR 362
R v BWT [2002] NSWCCA 60; 54 NSWLR 241
R v Kesisyan [2003] NSWCCA 259
R v SY [2004] NSWCCA 297
R v DRE [2004] NSWCCA 305
DPW v Regina [2006] NSWCCA 295 ; (2006) 164 A Crim R 583
R v DRE (2006) 164 A Crim R 400 ; [2006] NSWCCA 280
R v MM [2004] NSWCCA 364
R v Milton [2004] NSWCCA 195
R v Fletcher [2005] NSWCCA 338 ; (2005) 156 A Crim R 308
R v Lockyer (1996) 89 A Crim R 457
Norris v Regina [2007] NSWCCA 235 ; (2007) 176 A Crim R 42
KJR v Regina [2007] NSWCCA 165 ; (2007) 173 A Crim R 226
Perez v Regina [2008] NSWCCA 46

PARTIES: AW - Appellant
Regina - Respondent

FILE NUMBER(S): CCA 2006/06110010

COUNSEL: Peter Hamill SC - Appellant
L Wells - Respondent

SOLICITORS: Nyman Gibson Stewart - Appellant
S Kavanagh (Solicitor of Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0142

LOWER COURT JUDICIAL OFFICER: Maguire ADCJ

LOWER COURT DATE OF DECISION: 8 February 2007

2006/06110010

BELL JA
LATHAM J
FULLERTON J
30 JANUARY 2009

AW v REGINA

Judgment

1 BELL JA : I agree with Latham J.

2 LATHAM J : The appellant was convicted following trial on one count of indecent assault upon a child under the age of ten years, one count of commit an act of indecency towards a child under the age of ten years and two counts of sexual intercourse without consent upon a child under the age of 16 years. The complainant in each count was the daughter of the appellant’s de facto partner between September 1998 and 7 December 2000.

3 The appeal against these convictions is based upon four grounds. There is no appeal against sentence. The nature of the grounds of appeal do not require a detailed account of the evidence at trial. Three of the grounds relate…

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 AW v R

Details

AGLC: AW v R [2009] NSWCCA 1
Case: [2009] NSWCCA 1
Decision Date: 30 January 2009

CaseChat Overview and Summary

The case of AW v R involved an appellant who was convicted on charges of child sexual assault. The appellant sought to appeal his convictions, arguing that there were errors in the directions given to the jury by the trial judge, specifically in relation to the Black direction and the admission of tendency evidence. Additionally, the appellant challenged the adequacy of the Longman direction and the suggestion that the jury approach the counts in the indictment sequentially. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether there was an error in the Black direction provided to the jury, whether the admission of tendency evidence was appropriate, whether the Longman direction was adequate, and if there was an error in suggesting that the jury approach the counts sequentially. The appellant argued that these errors led to an unfair trial and that his convictions should be quashed. The respondent, the Crown, maintained that the trial was conducted fairly and that the jury's verdicts should stand.

The court found that there was no error in the Black direction or in the admission of tendency evidence. The court held that the Longman direction was adequate to ensure the jury considered the evidence properly and that the suggestion to approach the counts sequentially did not prejudice the appellant's case. The court determined that the trial judge had correctly instructed the jury on the principles of the criminal law relevant to the case, and that any perceived errors were either non-existent or did not materially affect the outcome of the trial. Consequently, the appeal was dismissed.

In summary, the High Court upheld the appellant's convictions, finding that there were no errors in the trial that would warrant a quashing of the verdicts. The court found that the trial was conducted fairly and that the jury's consideration of the evidence was not prejudiced by any direction or suggestion made during the trial.

Orders