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Cabot (a pseudonym) v R

Cabot (a pseudonym) v R

Case [2018] NSWCCA 265 28 November 2018

Appeal

Criminal Liability

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cabot (a pseudonym) v R [2018] NSWCCA 265
Hearing dates: 12 September 2018
Decision date: 28 November 2018
Before: Leeming JA at [1];
McCallum J at [87];
Bellew J at [88]
Decision:
1. Extend the time for the filing of a notice of appeal until 12 July 2018.

2. Grant leave to appeal on ground 1.

3. Refuse leave to appeal on ground 1A pursuant to r 4 of the Criminal Appeal Rules.
4. Dismiss the appeal.
Catchwords:
APPEAL – appeal against conviction – jury returned guilty verdict, but no conviction entered – whether appeal under s 5(1) of Criminal Appeal Act 1912 (NSW) available
CRIMINAL LAW – appeal – appeal against conviction – convictions on two counts of committing acts of indecency on a child – acquittals on other counts – jury unable to reach verdicts on further counts – whether guilty verdicts unreasonable – whether testimonial evidence of young child capable of sustaining jury’s verdicts – inconsistencies and gaps in evidence – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66A, 578A
Criminal Appeal Act 1912 (NSW), ss 5, 5A
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), Part 6
Cases Cited: Allan v R [2017] NSWCCA 6
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Jenkins v Director of Public Prosecutions [2013] NSWCA 406
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
McCann v R [2014] NSWCCA 79
NH v DPP (SA) (2016) 260 CLR 546; [2016] HCA 33
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Palmer v R [2018] NSWCCA 205
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53
R v Bonat [2004] NSWCCA 240
R v Kennedy [2000] NSWCCA 487
R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v NEK [2001] NSWCCA 392
R v TK (2009) 74 NSWLR 299
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490
Texts Cited: None
Category: Principal judgment
Parties: Cabot (a pseudonym) (Applicant)
Crown (Respondent)
Representation:
Counsel:

H Dhanji SC and LC Hutchinson (Applicant)
B Hatfield (Crown)

Solicitors:
Greg Walsh & Co (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/204469
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Before:

Traill DCJ

File Number(s):

2016/204469

Judgment

LEEMING…

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 Cabot (a pseudonym) v R

Details

AGLC: Cabot (a pseudonym) v R [2018] NSWCCA 265
Case: [2018] NSWCCA 265
Decision Date: 28 November 2018

CaseChat Overview and Summary

Cabot (a pseudonym) sought to appeal against his conviction for two counts of committing acts of indecency on a child, following a jury trial at which he was acquitted on other charges. The jury was unable to reach a verdict on further counts, and no conviction was entered in relation to those counts. The appeal was brought under section 5(1) of the Criminal Appeal Act 1912 (NSW), which allows an appeal against conviction in certain circumstances. The key legal issue was whether the appeal was available given the circumstances of the case, and if the convictions were unreasonable given the evidence presented, including the testimonial evidence of the young child.

The court considered the availability of the appeal and found that, despite no conviction being entered in relation to some counts, the appeal was permissible. The court also examined the evidence, including the testimonial evidence of the young child, to determine whether the convictions were unreasonable. The court found that the inconsistencies and gaps in the evidence did not render the guilty verdicts unreasonable, and that the evidence was capable of supporting the jury's verdicts. The court held that the appeal was dismissed as the convictions were not unreasonable in the circumstances.

The court concluded that the appeal was properly brought, but found no basis on which to allow it. The appeal was dismissed, and the convictions were upheld. The court did not make any further orders in relation to the appeal.

Orders