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Bolton v R

Bolton v R

Case [2023] NSWCCA 211 28 August 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bolton v R [2023] NSWCCA 211
Hearing dates: 24 July 2023
Date of orders: 28 August 2023
Decision date: 28 August 2023
Before: Harrison J at [1]
Wilson J at [53]
N Adams J at [55]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMES – appeals – appeal against conviction – sexual offences against child – asserted unreasonableness or questionable supportability of verdicts – where complainant six years old at time of alleged offending and nine years old at trial – asserted inconsistency of complainant’s evidence – where allegations themselves said to be so inherently fantastical jury must have had doubt – nature of child sexual offending – nature of allegations described within experience of courts and the community – jury advantage in observing witnesses – verdicts not unreasonable

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5

Cases Cited:
AS v R [2022] NSWCCA 291
Dansie v The Queen [2022] HCA 25
JL v R [2023] NSWCCA 99
Khan v R [2022] NSWCCA 157
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v R (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
RA v R [2020] NSWCCA 356
RW v R [2023] NSWCCA 2
Sita v R [2022] NSWCCA 90
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
VP v R [2021] NSWCCA 11
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: Brendon Bolton (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Avenell SC (Applicant)
E Nicholson (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/169366
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

10 December 2021 (conviction)
30 March 2022 (sentence)

Before:

Harris DCJ

File Number(s):

2019/00169366

HEADNOTE

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

Mr Bolton was tried and convicted on 10 December 2021 of seven counts of sexual offending against his nephew before a jury and Harris DCJ. The allegations in the indictment were referable to three separate incidents:

The “bathroom allegations”;
The “couch allegations”; and,
The “grey bed allegations”

The circumstances of the alleged offending, globally, were perverse, opportunistic and at times bizarre. The complainant’s account, who was aged six at the time of the alleged offending, six at the time of a JIRT police interview and nine at the time of the pre-recorded hearing, contained inconsistencies regarding both the occurrence and substance of the alleged offending.

Mr Bolton on appeal took issue with his conviction, asserting that the verdicts were unreasonable and cannot be supported having…

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 Bolton v R

Details

AGLC: Bolton v R [2023] NSWCCA 211
Case: [2023] NSWCCA 211
Decision Date: 28 August 2023

CaseChat Overview and Summary

In the High Court of Australia, the case of Bolton v R was heard. The appellant, Bolton, was convicted of sexually assaulting a child, with the complainant being six years old at the time of the alleged offences and nine at the time of the trial. The primary issue before the court was the fairness and reasonableness of the jury's verdicts, particularly in light of the complainant's young age and the alleged inconsistencies in her testimony. The court was required to assess whether the jury's decision was unreasonable or lacked adequate support, considering the inherent challenges in child sexual abuse cases and the unique circumstances of this case.

The court noted that the nature of child sexual abuse cases often presents unique difficulties in terms of evidence and witness credibility. The complainant's age at the time of the alleged offences and during the trial was highlighted as a critical factor. The court examined the consistency of the complainant's evidence and the inherent plausibility of the allegations, considering both the specific details of this case and the broader context of child sexual abuse cases. The jury's advantage in observing the complainant's demeanour and behaviour during testimony was also taken into account. Ultimately, the court determined that the jury's verdicts were not unreasonable and were adequately supported by the evidence presented.

The court held that the jury's verdicts were reasonable and supported by the evidence. The decision emphasised the importance of considering the unique challenges in child sexual abuse cases and the advantages juries have in assessing witness credibility. The court dismissed the appeal, affirming the conviction. The final orders of the court were that the appeal be dismissed and the convictions upheld.

Orders