Cox v The Queen - [2015] NSWCCA 158

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cox v R [2015] NSWCCA 158
Hearing dates: 10 June 2015
Date of orders: 10 June 2015
Decision date: 23 June 2015
Before: Simpson JA at [1]; Davies J at [38]; Hamill J at [42]
Decision:
(1) Leave to appeal granted.

(2) The appeal be upheld and the conviction quashed.

(3) A verdict of acquittal entered.
(4) The appellant is entitled to be released forthwith.
Catchwords: APPEAL - conviction - sexual intercourse with a child - whether conviction unreasonable and not supported having regard to the evidence - evidence contained discrepancies and was insufficient upon which to base a safe conviction - appeal allowed - conviction quashed - verdict of acquittal entered
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), s 306S
Cases Cited: M v The Queen [1994] HCA 63; 181 CLR 487
Category: Principal judgment
Parties: Steven Allan Cox (Appellant)
Regina (Respondent)
Representation:
Counsel:
R C Pontello (Appellant)
M McKay (Respondent)
Solicitors:
S E O’Connor - Legal Aid NSW (Appellant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/138659
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

03 March 2014

Before:

Garling ADCJ

File Number(s):

2012/138659

Judgment

SIMPSON JA: On 21 November 2013, after trial by jury, the appellant was convicted on an indictment that charged a single count of sexual intercourse with a child then under the age of 10 years. On 3 March 2014 he was sentenced to imprisonment for 6 years, commencing on 19 November 2013, with a non-parole period of 4 years which will expire on 18 November 2015.
The appellant sought leave to appeal against both the conviction and the sentence. Because the sole ground he sought to advance in support of an appeal against conviction was one raising a question of fact only, he required leave to do so: Criminal Appeal Act 1912 (NSW), s 5(1)(b). That ground was that the conviction was unreasonable and could not be supported having regard to the evidence. Consideration of that ground required this Court to make its own assessment of the whole of the evidence in the case, bearing in mind the advantage had by the jury in observing the witnesses at first hand: M v The Queen [1994] HCA 63; 181 CLR 487.
At the conclusion of the argument, the Court made orders granting leave to the appellant to appeal against the conviction, allowing the appeal, quashing the conviction, and ordering the entry of a verdict of acquittal. What follows are my reasons for joining in those orders.

The Crown case

The Crown case may be summarised briefly as follows.
The complainant was born in January 2004. His mother (“K”) had for some years lived in a de facto relationship with the appellant’s brother, C. The complainant lived with K and C. The appellant lived in the same coastal area as the complainant and his family and…

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 Cox v The Queen

Details

AGLC: Cox v The Queen [2015] NSWCCA 158
Case: [2015] NSWCCA 158
Decision Date: 23 June 2015

CaseChat Overview and Summary

In the case of Cox v The Queen, the appellant, Cox, was convicted of sexual intercourse with a child under the age of 10. Cox appealed against his conviction, arguing that it was unreasonable and not supported by the evidence. The appeal was heard by the High Court of Australia. The primary legal issue before the court was whether the conviction was unreasonable and unsupported by the evidence, given the discrepancies present in the testimonies and the overall sufficiency of the evidence.

The court examined the testimonies of the witnesses, particularly the child victim, and noted the inconsistencies and contradictions within their statements. The court found that these discrepancies undermined the reliability and credibility of the evidence, leading to a situation where a safe and sure conviction could not be made. The court held that the evidence was insufficient to support the conviction beyond reasonable doubt. Consequently, the court concluded that the conviction was unreasonable and quashed it. The High Court entered a verdict of acquittal for the appellant.

The High Court allowed the appeal and quashed the conviction of Cox. The court entered a verdict of acquittal in light of the insufficient and unreliable evidence presented. The court did not provide further orders beyond the acquittal, as the conviction had already been quashed.

Orders