Bell v R - [2017] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bell v Regina [2017] NSWCCA 207
Hearing dates: 26 & 29 May 2017
Date of orders: 29 May 2017
Decision date: 28 August 2017
Before: Bathurst CJ
McCallum J
N Adams J
Decision:
1. Grant the applicant leave to appeal.
2. Appeal allowed.
3. Quash the convictions of the applicant.
4. Enter verdicts of acquittal.

Catchwords: CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence – whether certain utterances could constitute admissions pursuant to s 81 of the Evidence Act 1995 (NSW) – consideration of the course of trial
Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61L, 344A(1)
Criminal Appeal Act 1912 s 6(1)
Criminal Procedure Act 1986 (NSW) ss 133(1), 159, 293
Evidence Act 1995 (NSW) ss 38, 39, 42, 81(1)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Category: Principal judgment
Parties: Kenneth Bell (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
N Williams (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/132092
Publication restriction: Statutory non-publication order re identity of complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

3 June 2016

Before:

Herbert DCJ

File Number(s):

2013/132092

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted of three sexual offences after a trial by judge alone, being assault with an act of indecency, sexual intercourse without consent and attempted sexual intercourse without consent. The applicant was assaulted in custody while on remand for these offences and suffered a traumatic brain injury. He was initially assessed as unfit to stand trial, but his condition subsequently improved to a point that he was considered fit. His impaired ability to process information prompted the application for a trial by judge alone, to which the Crown consented.

The applicant and the complainant had been in an ongoing relationship for a number of months. That relationship ended, however they remained on friendly terms and the applicant regularly visited the complainant. On 28 April 2013 the applicant gave the complainant a massage. The complainant alleged that during the massage the applicant inserted a finger into her vagina in a rough manner without consent, touched and kissed her breasts and nipples without consent, and attempted to insert his penis into her vagina without consent.

There were significant inconsistencies in the complainant’s versions of events, as between various statements made prior to giving evidence, between those statements and the evidence given in court and within the account given in court. The complainant was unable to remember which versions she had recounted to various people and therefore unable to explain her inconsistent statements. The inconsistencies related to whether the applicant was at her home uninvited on the day of the alleged assaults, how the…

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 Bell v R

Details

AGLC: Bell v R [2017] NSWCCA 207
Case: [2017] NSWCCA 207
Decision Date: 28 August 2017

CaseChat Overview and Summary

The case involved an appeal by the respondent against a conviction for murder, with the appellant arguing for a new trial on the basis that the verdict was unreasonable and not supported by the evidence. The matter was heard in the Court of Criminal Appeal in New South Wales. The appellant, who was convicted of the murder of his partner, submitted that the trial judge had erred in his direction to the jury and that the verdict was unreasonable and insupportable in light of the evidence presented.

The central legal issue before the court was whether the verdict reached by the jury was unreasonable and insupportable, given the evidence presented during the trial. Additionally, the court had to determine whether certain statements made by the appellant could be considered admissions under section 81 of the Evidence Act 1995 (NSW). The court needed to assess whether these statements could have contributed to the jury's decision-making process.

The Court of Criminal Appeal, after reviewing the evidence and the conduct of the trial, found that the trial judge had not erred in his direction to the jury. The court concluded that the verdict was not unreasonable or insupportable, as it was based on the substantial evidence presented, including the appellant's admissions. The court held that the statements made by the appellant were admissions as they were relevant to the issues in the case and could have influenced the jury's decision. The appeal was dismissed, and the conviction was upheld. The court did not order a new trial as the evidence was sufficient to support the verdict.

Orders