BC v R

Case [2019] NSWCCA 111 5 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: BC v R [2019] NSWCCA 111
Hearing dates: 3 April 2019
Decision date: 05 June 2019
Before: Leeming JA; Ierace J; Hidden AJ
Decision:
(1)   Grant leave to appeal and extend the time to appeal to 11 May 2018.

(2)   Quash the applicant’s convictions for counts 1 to 3 and enter verdicts of acquittal for those counts.

(3)   Dismiss the appeal against conviction in respect of counts 4 to 20.
(4)   Direct that the applicant file and serve any further submissions as to sentence within 21 days of today, and direct the respondent to file and serve any submissions in response within 14 days thereafter, those submissions to include whether any application is made for a further oral hearing, in default of which the remaining issues will be determined on the papers.
Catchwords: CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 5
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 130A, 306B
Evidence Act 1995 (NSW), ss 97, 101, Dictionary
Cases Cited: Armstrong v R [2017] NSWCCA 323
Aubrey v R [2015] NSWCCA 323
BC v The Queen [2015] NSWCCA 327; 257 A Crim R 340
BC v The Queen [2016] HCASL 166
BP v Regina; SW v Regina [2006] NSWCCA 172
DAO v R (2011) 81 NSWLR 558; [2011] NSWCCA 63
DS v R [2018] NSWCCA 195
El-Ali v R [2015] NSWCCA 300
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hughes v The Queen [2017] HCA 20; 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Johnson v The Queen [2018] HCA 48; 92 ALJR 1018
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
McPhillamy v R [2017] NSWCCA 130
McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v ALH (2003) 6 VR 276; [2003] VSCA 129
R v Grech; R v Kadir [2017] NSWCCA 288
Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75
RH v R

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 BC v R

Details

AGLC: BC v R [2019] NSWCCA 111
Case: [2019] NSWCCA 111
Decision Date: 05 June 2019

CaseChat Overview and Summary

The appellant, BC, appealed against his conviction for multiple child sexual assault offences against four young children. The appellant was found guilty and an aggregate sentence was imposed. The appellant argued that the guilty verdicts on counts one, two and three were unreasonable as the offences were committed when he was aged between 11 and 13, and that the Crown had not rebutted the doli incapax presumption. The appellant also argued that evidence of the complainants should not have been admitted as tendency evidence on counts involving other complainants, as the probative value of the evidence was not substantially outweighed by the prejudicial effect. The court considered whether the guilty verdicts on counts one, two and three were unreasonable, and whether the Crown had rebutted the doli incapax presumption. The court found that the evidence did not establish that the appellant understood the nature and quality of his acts to the requisite standard, and that the Crown had not rebutted the doli incapax presumption. The court therefore quashed the guilty verdicts on counts one, two and three. The court also considered whether the evidence of the complainants was admissible as tendency evidence on counts involving other complainants. The court found that the probative value of the evidence was substantially outweighed by the prejudicial effect, and that it should not have been admitted. The appeal was allowed in relation to the conviction on counts one, two and three, and dismissed in respect of counts four to twenty. The convictions on counts one, two and three were quashed and the appellant was acquitted of those offences.

Orders