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Binns v R

Binns v R

Case [2017] NSWCCA 280 27 November 2017

Appeal

Jurisdiction

Uncorroborated Evidence

Reasonable Doubt

Trial Errors

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Binns v R [2017] NSWCCA 280
Hearing dates: 15 November 2017
Decision date: 27 November 2017
Before: Basten JA at [1];
R A Hulme J at [59];
Garling J at [71]
Decision:
(1)   Grant the applicant an extension of time to file his notice of appeal to the date of filing of the notice on 23 August 2017.

(2) Pursuant to rule 4, refuse leave with respect to grounds 1, 2 and 3.

(3)   Refuse leave to appeal with respect to ground 4.
(4)   Accordingly the application for leave to appeal is dismissed.
Catchwords:
CRIME – appeal – application for leave to appeal against conviction – applicant convicted of sexual intercourse with person under 10 years of age – whether trial judge should have given direction as to forensic disadvantage resulting from delay in complaint pursuant to Evidence Act 1995 (NSW), s 165B – whether jury should have been specifically directed to be satisfied beyond reasonable doubt of the truthfulness of the uncorroborated complainant – whether factual errors in trial judge’s directions significant – whether verdict unsafe and unreasonable
CRIMINAL PROCEDURE – extension of time to appeal – failure to seek additional directions – leave required under Criminal Appeal Rules, r 4 – leave required under Criminal Appeal Act 1912, s 5(1)
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 294, 294AA
Evidence Act 1995 (NSW), ss 165, 165A, 165B
Evidence Amendment Act 2008 (NSW)
Cases Cited: AL v R [2017] NSWCCA 34
Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60
Ewen v R [2015] NSWCCA 117; 250 A Crim R 544
Groundstroem v R [2013] NSWCCA 237
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
Munn v The Queen [2006] NSWCCA 61
Perez v Regina [2008] NSWCCA 46
PT v The Queen [2011] VSCA 43
R v Jovanovic (1997) 42 NSWLR 520
R v Murray (1987) 11 NSWLR 12
Regina v King [2000] NSWCCA 507
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42
TO v R [2017] NSWCCA 12
Texts Cited: Law Reform Commission, Report No 102: Uniform Evidence Law (December 2005), Ch 18
Category: Principal judgment
Parties: David Binns (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Randle (Applicant)
Ms H Roberts (Respondent)
Solicitors:
Hunter Flood Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/248004
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 September 2015

Before:

Hanley SC DCJ

File Number(s):

2013/248004

Judgment

BASTEN JA: On 5 August 2015 the applicant, David Binns, was convicted by a jury on one count of sexual intercourse (cunnilingus) with a person under the age of 10 years. The complainant’s mother and Mr Binns’ partner (Elizabeth) were cousins. The complainant was a friend of Elizabeth’s daughter. The offence was said to have taken place of 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 Binns v R

Details

AGLC: Binns v The Queen [2017] NSWCCA 280
Case: [2017] NSWCCA 280
Decision Date: 27 November 2017

CaseChat Overview and Summary

The applicant, Binns, appeals against his conviction for sexual intercourse with a person under 10 years of age. The case was heard in the Supreme Court of New South Wales, with the appeal concerning the adequacy of the trial judge's directions to the jury and the subsequent impact on the safety and reasonableness of the verdict. The applicant argues that the trial judge should have provided a direction regarding the forensic disadvantage resulting from the delay in the complaint, as required under the Evidence Act 1995 (NSW), section 165B. Additionally, Binns contends that the jury should have been specifically directed to be satisfied beyond reasonable doubt of the truthfulness of the uncorroborated complainant. The appeal also addresses whether any factual errors in the trial judge's directions were significant and whether these errors rendered the verdict unsafe and unreasonable.

The court was tasked with determining whether the trial judge's failure to give certain directions amounted to a substantial miscarriage of justice. Specifically, the court had to consider if the omission of a direction regarding the delay in the complaint pursuant to Evidence Act 1995 (NSW), section 165B, had any impact on the jury's assessment of the evidence. Furthermore, the court assessed whether the jury should have received specific instructions regarding the need to be satisfied beyond reasonable doubt of the truthfulness of the uncorroborated complainant. The court also examined whether any factual inaccuracies in the trial judge's directions were significant enough to undermine the safety and reasonableness of the verdict.

In its decision, the court concluded that the trial judge's failure to provide a direction regarding the delay in the complaint did not constitute a substantial miscarriage of justice. The court found that the trial judge had adequately addressed the issue of corroboration, and the jury had been appropriately directed on the need to be satisfied beyond reasonable doubt of the complainant's truthfulness. The court determined that any factual errors in the trial judge's directions were not significant and did not affect the safety and reasonableness of the verdict. Consequently, the appeal was dismissed, and no leave to appeal was granted.

No specific orders were made beyond the dismissal of the appeal and the denial of leave to appeal.

Orders