Hoeben CJ at CL at [1] Davies J at [256] Adamson J at [257]
Decision:
With respect to Grounds of Appeal 1 - 9, the appeal is dismissed.
Leave to appeal is granted with respect to Ground of Appeal 10 but the appeal is dismissed.
Catchwords:
CRIMINAL LAW - conviction appeal - Appellant a former Catholic priest - 11 counts of indecently assaulting four different victims over a five year period - whether all counts should have been tried together - whether trial judge erred in permitting Crown to rely upon tendency evidence - whether evidence of hypnosis should have been allowed in relation to one of the complainants and a witness - whether cross-examination should have been permitted under the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) - whether evidence of psychiatrist retained by Appellant was properly rejected - whether jury should have been discharged after wrongful admission of evidence - whether trial judge incorrectly directed jury as to unanimous verdict - conviction appeal dismissed - SENTENCE APPEAL - whether Appellant subjected to extra curial punishment and its relevance - threats made against Appellant's wife and children - whether proper regard taken of Appellant's state of health - relevance of conditions under which sentence being served - relevance of Appellant's age - relevance of Appellant's previous good character - whether proper regard had to sentencing practices at time of the offending - sentence not manifestly excessive - appeal dismissed.
[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.
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Details
AGLC
BJS v R [2013] NSWCCA 123
Case
[2013] NSWCCA 123
Decision Date
CaseChat Overview and Summary
In the case of BJS v R, the appellant, a former Catholic priest, was convicted of 11 counts of indecent assault against four different victims over a five-year period. The matter came before the court on appeal from both his conviction and sentence. The appellant contested the validity of the trial process and the appropriateness of the sentence imposed. The court was required to consider several significant legal issues.
The primary legal issues revolved around the conduct of the trial. The appellant argued that all counts should have been tried together, that the trial judge erred in allowing the Crown to rely on tendency evidence, and that evidence of hypnosis should not have been admitted. Additionally, the appellant challenged the admissibility of cross-examination under the Criminal Procedure Act 1986, the exclusion of evidence from a psychiatrist retained by the appellant, and the trial judge's handling of a situation where evidence should not have been admitted. The appellant also contended that the jury should have been discharged due to this wrongful admission of evidence and that the trial judge had incorrectly directed the jury regarding the requirement for a unanimous verdict.
The court meticulously reviewed each argument, considering the trial's fairness and the admissibility of specific evidence. The court found that the trial judge's decisions were within the bounds of proper judicial discretion and that no errors had prejudiced the appellant's case. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the court examined whether the appellant had been subjected to extra-curial punishment, threats against his family, and the relevance of various personal factors to the sentencing process. The court determined that the sentence was not manifestly excessive and dismissed the appeal against the sentence as well.