BS v R

Case [2021] NSWCCA 39 19 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: BS v R [2021] NSWCCA 39
Hearing dates: 20 November 2020
Date of orders: 19 March 2021
Decision date: 19 March 2021
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Fagan J at [91]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords:
CRIME - appeals - appeal against conviction and sentence - applicant found guilty of four offences contrary to ss 61M(2) and 66A - two separate complainants both grandnieces of the applicant aged 7 and 12 - indecent assaults and digital penetration - whether the trial judge erred in directing the jury that evidence of complaint was independent of what two complainants said in court - whether trial judge erred in admitting a statement on sentence containing hearsay - where the statement impugned applicant’s character but was not tendered for that purpose - where applicant did not raise good character - whether the sentence was manifestly excessive - appeal dismissed

Legislation Cited:
Crimes Act 1900 (Cth) s 16A
Crimes Act 1900 (NSW) ss 61M, 66A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21
Criminal Appeal Act 1912 (NSW) ss 5, 6
Criminal Appeal Rules 1952 r 4
Evidence Act 1995 (NSW) s 4

Cases Cited:
DV v R [2017] NSWCCA 276
Farkas v R [2014] NSWCCA 141
Papakosmas v The Queen (1999) 196 CLR 297
Parkinson v R [2016] NSWCCA 49
R v Alvarez [2011] NSWCCA 33; (2011) 209 A Crim R 297
R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
R v Elfar [2003] NSWCCA 358
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Scott [2020] NSWCCA 81
RC V Regina [2020] NSWCCA 76
Regina v Skuse (NSW Court of Criminal Appeal, 24 October 1996, unrep)
SB v R [2020] NSWCCA 207
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:
Judicial Commission of NSW, Criminal Trial Courts Bench Book

Category: Principal judgment
Parties: BS (Appellant)
Crown (Respondent)
Representation:
Counsel:
J Stratton (Appellant)
B Baker (Respondent)
Solicitors:
J Hanby (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/5222
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

15 August 2019

Before:

Pickering SC DCJ

File Number(s):

2016/5222

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was charged with the following offences:

Counts 1 and 2: Indecent assault of a person under the age of 16 years, namely, seven years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (now repealed). The maximum penalty for this offence is ten years’ imprisonment. There is a standard non-parole period of eight years.

Count 3: Sexual intercourse with a child under the age…

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 BS v R

Details

AGLC: BS v R [2021] NSWCCA 39
Case: [2021] NSWCCA 39
Decision Date: 19 March 2021

CaseChat Overview and Summary

The appeal was brought by an individual identified as BS against the Crown, with the case concerning multiple offences of a sexual nature. The applicant was found guilty of four counts, two each under sections 61M(2) and 66A, based on the testimonies of two complainants who were the applicant’s grandnieces, aged 7 and 12 at the time of the incidents. The nature of the offences involved indecent assaults and digital penetration. The applicant contested the conviction and sentence, arguing errors in the trial judge’s directions to the jury and the admission of certain evidence.

The court examined whether the trial judge had erred in directing the jury that the evidence of the complaint was independent of what the two complainants said in court. Additionally, the court considered whether the trial judge erred in admitting a statement on sentence that contained hearsay, despite it not being tendered for the purpose of impugning the applicant’s character. The applicant also argued that the sentence was manifestly excessive. The court found no merit in these arguments, affirming the trial judge's decisions and the appropriateness of the sentence.

The court determined that the trial judge correctly directed the jury regarding the independence of the complainants' evidence and found no error in the admission of the statement on sentence, as it did not improperly influence the jury’s assessment of the applicant’s character. Furthermore, the court held that the sentence was not manifestly excessive, taking into account the gravity of the offences and the need for deterrence and rehabilitation. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

Orders