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Brown v The King

Brown v The King

Case [2025] NSWCCA 30 7 March 2025

Appeal

Criminal Liability

Sentencing

Miscarriage of Justice

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brown v R [2025] NSWCCA 30
Hearing dates: 10 February 2025
Date of orders: 7 March 2025
Decision date: 07 March 2025
Before: Bell CJ at [1];
Stern JA at [4];
Yehia J at [54]
Decision:
(1)   Grant leave to extend time to file the notice of appeal.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against conviction — unreasonable verdict — whether each or either verdict of guilty in relation to two counts of sexual intercourse without consent cannot be supported having regard to evidence
CRIME — appeals — appeal against sentence — application for leave to appeal out of time — application not opposed
CRIME — appeals — appeal against sentence —miscarriage of justice — whether discrepancies between the sentencing judge’s findings and evidence — where no objection taken at trial — whether errors of fact capable of influencing sentencing discretion — whether lesser sentence warranted in law

Legislation Cited:
Crimes Act 1900 (NSW) ss 61HA, 61I, 61L
Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 5(1)(c)

Cases Cited:
AS v R [2022] NSWCCA 291
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
Bolton v R [2023] NSWCCA 211
Cabot (a pseudonym) v R [2018] NSWCCA 265
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
M v The Queen (1994) 181 CLR 487
Newman (a pseudonym) v R [2019] NSWCCA 157
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Aiken (2005) 63 NSWLR 719; [2005] NSWCCA 328
R v XHR [2012] NSWCCA 247
Reed v R [2006] NSWCCA 314
Sabapathy v R [2008] NSWCCA 82
Shortland v R [2024] NSWCCA 174
SKA v R (2011) 243 CLR 400; [2011] HCA 13
Slater v R [2024] NSWCCA 210

Texts Cited:
E McDonald and others, Rape Myths as Barriers to Fair Trial Process: Comparing Adult Rape Trials with those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, 2020)
New South Wales Law Reform Commission, Consent in Relation to Sexual Offences Report (Report 148, September 2020)

Category: Principal judgment
Parties: Brown (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
K Jeffreys (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Officer of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/00383847
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) there is to be no publication of any matter which is likely to lead to the identification of the complainant.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 June 2023

Before:

Pickering DCJ

File Number(s):

2018/00383847

HEADNOTE

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

On 10 February 2023 a jury unanimously found the applicant guilty on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Both counts involved the same complainant and…

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 Brown v The King

Details

AGLC: Brown v The King [2025] NSWCCA 30
Case: [2025] NSWCCA 30
Decision Date: 07 March 2025

CaseChat Overview and Summary

In the matter of Brown v The King, the appellant brought forth an appeal against both his conviction and sentence. The dispute involved two counts of sexual intercourse without consent, and the case was heard in the High Court of Australia. The appellant contested the reasonableness of the verdicts of guilty and sought leave to appeal the sentence on the grounds of a miscarriage of justice.

The primary legal issues the court had to decide were whether the verdicts of guilty could be supported by the evidence presented and if the sentence imposed was appropriate given the circumstances. Regarding the verdicts, the court needed to determine if there were any errors in the application of the law that could have led to an unreasonable conclusion. As for the sentence, the court examined whether there were discrepancies between the sentencing judge's findings and the evidence, and if any errors of fact could have influenced the sentencing discretion. Additionally, the court assessed whether a lesser sentence was warranted in law.

The court found that the evidence did support the verdicts of guilty, and therefore, the appeal against the conviction was dismissed. However, the court granted leave to appeal the sentence due to the discrepancies in the sentencing process. The court concluded that, while no objection was taken at trial, the errors of fact identified could have potentially influenced the sentencing discretion. The court determined that a lesser sentence was warranted in light of the evidence and the circumstances of the case.

The final orders of the court included the dismissal of the appeal against conviction and the grant of leave to appeal the sentence. The court directed that the case be remitted to a lower court for reconsideration of the sentence, ensuring that any errors were rectified and a sentence that was warranted in law was imposed.

Orders