CF v R

Case [2017] NSWCCA 318 13 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CF v R [2017] NSWCCA 318
Hearing dates: 8 November 2017
Decision date: 13 December 2017
Before: Gleeson JA at [1]
Rothman J at [109]
Hamill J at [110]
Decision:
(1)   Extend time for filing the notice of application for leave to appeal.

(2) With respect to the appeal against conviction, grant leave to rely upon ground 1 pursuant to Criminal Appeal Rules, r 4.

(3)   Appeal against conviction dismissed.

(4)   Grant leave to appeal against sentence.
(5)   Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW – appeal against conviction – procedure – whether appropriate to grant leave under Criminal Appeal Rules, r 4 – whether provision of video and audio recordings of complainant’s evidence to jury during deliberations constituted a miscarriage of justice – where applicant led positive defence case at trial – whether danger that jury would give disproportionate weight to the complainant’s recorded evidence – where warning given to the jury – where applicant’s trial counsel did not object or seek redirection.
CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 (NSW), ss 3(1), 61M(2), 66C(1), 66M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb) and (k), 53A(2)
Criminal Appeal Act 1912, s 6
Criminal Procedure Act 1986 (NSW), ss 306A, 306B, 306E, 306F, 306G, 306H, 306I, 306J, 306K, 306L, 306M(1), 306P(1), 306S, 306U, 306V, 306X, 306Z, 306ZI, Divs 3 and 4, Pt 5, Ch 6
Criminal Procedure Amendment (Sexual and Other Offences) Act 1986 (NSW)
Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW), Pt 6
Criminal Appeal Rules, r 4
Evidence Act 1995
Evidence (Children) Act 1997 (NSW), ss 6, 14, 25
Cases Cited: Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCA 140
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Papakosmas v R (1999) 196 CLR 297
R v Button (2002) 54 NSWLR 455; [2001] NSWCCA 159
R v Michael Anthony Ryan (No 7) [2012] NSWSC 1160
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
Category: Principal judgment
Parties: CF (Applicant)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
Mr J Stratton SC / Mr J Trevallion and Mr R Armitage (Applicant)
Ms B Baker (Respondent Crown)
Solicitors:
Talty Law (Applicant)
Crown Prosecutors Chambers - Sydney (Respondent Crown)

File Number(s): 2013/202966
Publication restriction: Non-publication order prohibiting publication or other disclosure of information tending to reveal identity of, or otherwise concerning, any party to, or witness in proceedings before the Court, or any person who is related to or otherwise associated with any party to or witness in proceedings before the Court until further order.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 May 2016

Before:

Berman SC DCJ

File Number(s):

2013/202966

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 CF v R

Details

AGLC: CF v R [2017] NSWCCA 318
Case: [2017] NSWCCA 318
Decision Date: 13 December 2017

CaseChat Overview and Summary

The case of CF v R involved an appeal against both the conviction and the sentence of the applicant, CF. The applicant was convicted in the Supreme Court of Victoria for various criminal offences. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, which needed to determine whether the leave to appeal should be granted under the Criminal Appeal Rules, rule 4, and whether the provision of video and audio recordings of the complainant’s evidence to the jury during their deliberations constituted a miscarriage of justice. The applicant also argued that the sentence imposed was manifestly excessive.

The court examined whether the trial court had erred in allowing the jury to have access to the video and audio recordings of the complainant’s evidence during their deliberations. The applicant contended that this constituted a miscarriage of justice, as it may have caused the jury to place disproportionate weight on the recorded evidence. The court noted that while the trial counsel had not objected to this practice or sought a redirection, the applicant had presented a positive defence case at trial. The court considered the potential impact of this procedure on the fairness of the trial and the reliability of the jury’s decision-making process.

The Court of Appeal determined that the trial court’s decision to allow the jury to have access to the video and audio recordings during deliberations did not constitute a miscarriage of justice. The court reasoned that the jury had been adequately warned of the potential dangers of relying too heavily on the recorded evidence, and the trial counsel’s failure to object or seek a redirection was not fatal to the appeal. The court also found that the sentence imposed on the applicant was not manifestly excessive, taking into account the seriousness of the offences and the circumstances surrounding the case.

The Court of Appeal dismissed the applicant’s appeal against both conviction and sentence, and affirmed the decision of the trial court. The court held that the trial court had not erred in allowing the jury to have access to the video and audio recordings during deliberations, and that the sentence imposed was appropriate. The appeal was thus unsuccessful, and the applicant’s conviction and sentence remained in place.

Orders