Legal Research
Cases
Bussey v R

Bussey v R

Case [2020] NSWCCA 280 16 November 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bussey v R [2020] NSWCCA 280
Hearing dates: 21 October 2020
Date of orders: 16 November 2020
Decision date: 16 November 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Bellew J at [112]
Decision:
(1)   Grant leave to appeal against conviction.
(2)   Dismiss the appeal against conviction.
(3)   Grant leave to appeal against sentence.
(4)   Dismiss the appeal against sentence.
(5) The applicant is to be taken into custody today.

Catchwords:
APPEAL – conviction appeal – trial by jury – indecent assault – sexual intercourse without consent – acquittal on Counts 1, 2 and 4 – finding of guilt on Count 3 – conviction appeal – whether verdict of guilty on Count 3 unreasonable due to inconsistency with acquittals on the other counts – where acquittals not necessarily dependent on adverse findings as to complainant’s credibility – where finding of guilt on Count 3 not inconsistent or unreasonable
APPEAL – sentence appeal – whether evidence of a prior intimate relationship is relevant to objective seriousness – where seriousness of offending not mitigated by prior sexual relationship between offender and victim

Legislation Cited:
Crimes Act 1900 (NSW) ss 37(2), 61J(1), 61L
Crimes (Sentencing and Procedure) Act 1999 (NSW) s 5
Criminal Appeal Act 1912 (NSW) s 6
Evidence Act 1995 (NSW) s 191

Cases Cited:
Artery v R [2017] NSWCCA 259
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bellchambers v R [2011] NSWCCA 131
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Magro v R [2020] NSWCCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
NM v R [2012] NSWCCA 215
R v Hendricks [2011] NSWCCA 203
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Wiren v R (1996) 89 A Crim R 356
Zreika v R [2012] NSWCCA 33; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Derek David Bussey (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
E Balodis (Respondent)
Solicitors:
Monica McKenzie Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/343640
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

Date of conviction: 24 March 2020
Date of sentence: 7 July 2020

Before:

Hunt DCJ

File Number(s):

2018/00343640

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.…

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 Bussey v R

Details

AGLC: Bussey v The Queen [2020] NSWCCA 280
Case: [2020] NSWCCA 280
Decision Date: 16 November 2020

CaseChat Overview and Summary

The appellant was convicted of indecent assault and sexual intercourse without consent, with the jury acquitting him on three counts but finding him guilty on the fourth. The appeal challenged the verdict's reasonableness and the sentence's appropriateness. The court examined whether the conviction on Count 3 was inconsistent with the acquittals on the other counts, considering that the acquittals did not necessarily reflect adversely on the complainant’s credibility. The court concluded that the jury’s decision was not unreasonable, as the findings were consistent with the evidence presented.

The appeal also addressed the relevance of evidence regarding a prior intimate relationship between the appellant and the complainant in determining the objective seriousness of the offending. The court assessed whether such evidence should have been considered in sentencing. It found that the prior relationship did not mitigate the seriousness of the offences, as the focus should be on the harm caused to the victim and the community, rather than on mitigating circumstances. The appeal was dismissed, affirming both the conviction and the sentence imposed.

Orders