AZ v R

Case [2018] NSWCCA 294 14 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AZ v R [2018] NSWCCA 294
Hearing dates: 8 October 2018
Decision date: 14 December 2018
Before: White JA at [1];
Walton and Wilson JJ at [142]
Decision:
(1) Leave to appeal is granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – Application for leave to appeal against convictions – Child sexual assault and indecency – Where evidence in chief included four video recorded police interviews with complainant and complainant’s evidence at trial – Where complainant made concessions in cross-examination – Where jury convicted despite concessions – Whether appropriate for appeal court to view video recordings – Application for leave granted – Appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61O, 66A, 66B
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), s 306S
Evidence Act 1995 (NSW), ss 66, 108
Cases Cited: Abbott (a pseudonym) v R [2017] NSWCCA 149
Alqudsi v The Queen (2016) 90 ALJR 211; [2016] HCA 24
Cabot (a pseudonym) v R [2018] NSWCA 265
CLC v R [2015] NSWCCA 248
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Hocking v Bell (1945) 71 CLR 430
Jones v The Queen (1997) 191 CLR 439
Kingswell v The Queen (1985) 159 CLR 264
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606
Norris v Regina [2007] NSWCCA 235
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Carbone [2000] NSWCCA 387
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Lee (Unreported, 27 June 1991, BC9101839)
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Parkinson [1990] 1 Qd R 382; (1990) 44 A Crim R 177
R v Prasad (1979) 2 A Crim R 45
SKA v R [2009] NSWCCA 186
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TA v R [2015] NSWCCA 151
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Whitehorn v The Queen (1983) 152 CLR 657
Texts Cited: Cross on Evidence (11th ed, 2017)
Category: Principal judgment
Parties: AZ (Applicant)
Regina (Respondent)
Representation:
Counsel:
C O’Donnell SC (Applicant)
M England (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/113278
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

nil

Date of Decision:

10 April 2017

Before:

Armitage ADCJ

File Number(s):

2015/113278

Judgment

WHITE JA: This is an application for leave to appeal against convictions on charges of child sexual assault and indecency. The name of the applicant is a pseudonym to protect the identity of the complainant and the complainant’s younger brother.
On 7 March 2017 the applicant was convicted by a jury…

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 AZ v R

Details

AGLC: AZ v R [2018] NSWCCA 294
Case: [2018] NSWCCA 294
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the case of AZ v R, the applicant sought leave to appeal against convictions for child sexual assault and indecency. The case was heard in the court of appeal, where the applicant had previously been convicted by a jury in the County Court. The applicant challenged the sufficiency of the evidence upon which the jury based their conviction, arguing that the jury ought to have been directed to disregard the complainant's evidence as unreliable.

The court was required to determine whether the applicant's concessions during cross-examination were of such significance that they should have led the jury to doubt the reliability of the complainant's evidence. The court also needed to assess whether viewing the video recordings of the police interviews would have assisted the jury in determining the reliability of the complainant's evidence. Ultimately, the court had to decide whether the applicant's grounds for appeal were arguable and, if so, whether they should be granted leave to appeal.

The court held that the concessions made by the complainant during cross-examination were indeed significant and ought to have led the jury to doubt the reliability of the complainant's evidence. The court found that the concessions were not adequately addressed in the summing up, and that the jury should have been directed to disregard the complainant's evidence as unreliable. The court also held that viewing the video recordings of the police interviews would have assisted the jury in determining the reliability of the complainant's evidence. However, the court ultimately dismissed the appeal, holding that the errors identified did not affect the safety of the applicant's convictions.

No final orders were made in this case as the appeal was dismissed. However, the court did grant the applicant leave to appeal, which allowed the applicant to challenge the convictions on the grounds that the evidence was insufficient. This decision highlights the importance of ensuring that juries are properly directed on the reliability of evidence, particularly where significant concessions are made during cross-examination.

Orders