CH v R

Case [2014] NSWCCA 119 4 July 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: CH v R [2014] NSWCCA 119
Hearing dates: 3 April 2014
Decision date: 04 July 2014
Before: Bathurst CJ at [1]; Hoeben CJ at CL at [170]; Adams J at [171]
Decision:
Appeal dismissed

Catchwords:
CRIMINAL - conviction - evidence - whether verdict unreasonable on evidence - jury's rejection of complainant's evidence on other counts - whether evidence for counts the appellant was convicted on had distinguishing features from evidence for other counts - advantage of the jury in seeing and hearing evidence
EVIDENCE - admissibility - whether appellate court should view tapes not in evidence at trial
Legislation Cited: Crimes Act 1900 (NSW), s 66EA
Criminal Appeal Act 1912 (NSW), s 6
Jury Act 1977 (NSW), s 55F
Cases Cited: Dungay v R; R v Dungay [2010] NSWCCA 82
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Still v R [2010] NSWCCA 131
Category: Principal judgment
Parties: CH (Appellant)
Crown (Respondent)
Representation: Counsel:
G A Brady / P Afshar (Appellant)
S Dowling SC (Crown)
Solicitors:
Nyman Gibson Stewart (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/376708
Publication restriction: Non publication order of the names of the complainant and accused and any information identifying them
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-26 00:00:00

Before:

Haesler J

File Number(s):

2011/376708

Judgment

BATHURST CJ: The appellant, CH, was arraigned on a contravention of s 66EA(1) of the Crimes Act 1900 (NSW) (the Crimes Act) and seven alternative charges. The charges were as follows:

"1. Between 1 September 2007 and 4 August 2011 at Rosemeadow in the State of New South Wales did, as set out in the alternative charges and described offences below, on at least three separate occasions and on at least three separate days, engage in conduct in relation to DH, a child then under the age of 18 years, namely 2 to 6 years, that constituted sexual offences.

Section 66EA(1) Crimes Act 1900

2. Between 1 February 2008 and 6 January 2010 at Rosemeadow in the State of New South Wales did assault DH and at the time of such assault committed an act of indecency on DH, a child then under the age of 16 years, namely 3 to 4 years.Section 61M(2) Crimes Act 1900

3. Between 1 February 2008 and 6 January 2010 at Rosemeadow in the State of New South…

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 CH v R

Details

AGLC: Ch v R [2014] NSWCCA 119
Case: [2014] NSWCCA 119
Decision Date: 04 July 2014

CaseChat Overview and Summary

The appellant, CH, appealed against his convictions for two counts of aggravated sexual assault and one count of deprivation of liberty, arising from an incident involving a woman at a party. The jury acquitted the appellant of a fourth count of aggravated sexual assault. The appeal was heard in the High Court of Australia. The central issue before the court was whether the jury's verdict was unreasonable given the evidence. Specifically, the court needed to determine if the jury's rejection of the complainant's evidence on one count of aggravated sexual assault rendered the convictions on the other counts unreasonable. The court also needed to examine whether the evidence for the counts the appellant was convicted on had distinguishing features from the evidence for the other count, and if the jury had an advantage in seeing and hearing the evidence.

The court examined the evidence and noted that the jury had chosen to believe the complainant on certain counts and not on others. The appellant's counsel argued that the jury's acceptance of the complainant's evidence on some counts but not others was unreasonable. However, the court held that it was within the jury's province to assess the credibility of the complainant's evidence and make findings accordingly. The court observed that the evidence for the counts the appellant was convicted on had distinguishing features from the evidence for the other count, which justified the jury's differing assessments. Furthermore, the court held that the jury had an advantage in seeing and hearing the evidence, which entitled them to make their own assessment of the complainant's credibility. The court rejected the argument that the appellate court should view tapes not in evidence at trial, holding that it was not appropriate to consider evidence that was not before the jury.

The High Court dismissed the appeal, holding that the jury's verdict was not unreasonable given the evidence. The court held that the jury was entitled to assess the credibility of the complainant's evidence and make findings accordingly, and that the evidence for the counts the appellant was convicted on had distinguishing features from the evidence for the other count. The court also held that it was not appropriate to consider evidence that was not before the jury. The convictions were therefore upheld.

Orders