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BW v The King

BW v The King

Case [2023] NSWCCA 146 23 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BW v R [2023] NSWCCA 146
Hearing dates: 17 March 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Before: Simpson AJA at [1]
Garling J at [97]
Ierace J at [259]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed

Catchwords:
CRIME — Appeals — Appeal against conviction — unreasonable verdict — inconsistent verdict — where applicant had been convicted on two counts but acquitted on four others — where all six counts involved the same complainant — where alleged conduct and circumstances the subject of the counts were similar in many respects — where the prosecution’s evidence was largely and principally that of the complainant — where the applicant gave evidence and denied that the offending conduct occurred — whether verdicts on counts for which applicant had been convicted were unreasonable or could not be supported having regard to the evidence — whether verdicts of guilty on those counts were inconsistent with verdicts of not guilty on other counts — leave to appeal granted — appeal dismissed

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Jury Act 1977 (NSW)

Cases Cited:
Black v The Queen (1993) 179 CLR 44; [1993] HCA 7
Cullen v R [2022] NSWCCA 63
Dansie v The Queen [2022] HCA 25
Filippas v The Queen (2015) 256 CLR 47; [2015] HCA 29
Ganiji v The Queen [2019] NSWCCA 208
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Keen v The Queen [2020] NSWCCA 59
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487; [1994] HCA 63;
Mackenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen [2020] 268 CLR 123; [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Saunders v R [2022] NSWCCA 273
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Slattery v R [2023] NSWCCA 117
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: BW (App)
The Crown (Resp)
Representation:
Counsel:
K Stares SC / S McKensey (App)
E Balodis (Resp)
Solicitors:
Criminal Defence Lawyers Australia (App)
The Director of Public Prosecutions (Resp)

File Number(s): 2019/373999
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 August 2021

Before:

Williams ADCJ

File Number(s):

2019/373999

HEADNOTE

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

The applicant was found guilty by a jury, by majority verdict, of one count of indecent assault of a child under the age of 16 years (s 61M(2) of the Crimes Act 1900) (Count…

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 BW v The King

Details

AGLC: BW v The King [2023] NSWCCA 146
Case: [2023] NSWCCA 146
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the matter of BW v The King, the applicant sought to appeal against his conviction on two counts of indecent assault. The appeal was made on the basis that the verdicts were unreasonable and inconsistent. BW had been acquitted on four other counts, all of which involved the same complainant. The alleged incidents and the circumstances were similar across all six counts. The prosecution's case primarily relied on the testimony of the complainant, while BW denied the allegations and gave evidence in his own defence.

The primary legal issues before the court were whether the verdicts on the counts for which BW was convicted were unreasonable or unsupported by the evidence, and whether these guilty verdicts were inconsistent with the acquittals on the other counts. The court had to determine if the jury could reasonably have reached the verdicts given the evidence presented. It also needed to consider the principles governing the consistency of verdicts in cases with multiple charges against the same complainant.

The court held that the verdicts were not unreasonable and were supported by the evidence. It found that the jury could reasonably have accepted the complainant's evidence on the counts in question, while rejecting it on the other counts. The court noted that the nature of sexual assault cases often involves discrepancies in the evidence, and such inconsistencies do not necessarily render a verdict unreasonable. Given the careful consideration of the evidence and the principles of jury decision-making, the court dismissed the appeal.

No further orders were made by the court beyond the dismissal of the appeal.

Orders