Crossgrove (a Pseudonym) v The Queen - [2019] NSWDC 424

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Crossgrove (A Pseudonym) v R [2019] NSWDC 424
Hearing dates: 9, 11 and 12 April 2019
Date of orders: 23 May 2019
Decision date: 23 May 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
Dismiss the appeal against conviction

Catchwords: CRIME – all grounds appeal – aggravated indecent assault – dentist assault of dental assistant – attempted kiss – slap on backside – grabbing shoulder – credit findings of Magistrate – tendency evidence – text messages – whether significant probative value
Legislation Cited: Crimes (Appeal and Review) Act 2001, s 11, s 18, s 20
Evidence Act 1995, s 66, s 97, s 101
Cases Cited: Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244
Eades v DPP (NSW) (2010) 77 NSWLR 173
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Johnson v Ramsden [2019] WASC 84
McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
R v Bauer (A Pseudonym) (2018) 359 ALR 359; [2018] HCA 40
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
Category: Principal judgment
Parties: Paul Daniel Crossgrove (Appellant)
Regina (Respondent)
Representation: Solicitors:
Johnston Vaughan Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/236831
Publication restriction: NB: s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies any complainant or may lead to the identification of any complainant. As such pseudonyms have been used.
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

31 August 2018

Before:

Magistrate D Covington

File Number(s):

2017/236831

Judgment

Introduction

Paul Daniel Crossgrove appeals from a decision of the Local Court convicting him of two charges of aggravated indecent assault and one charge of assault. All involve the same complainant, Melissa Thompson.
Ms Thompson was a 19-year-old dental assistant who worked with Mr Crossgrove, a dentist. The element of aggravation in the two charges of indecent assault was Mr Crossgrove's position of authority as the sole dentist at the practice. This was not disputed by Mr Crossgrove.
The appeal also raises a question about the value of tendency evidence.

The appeal

The appeal against conviction in the Local Court is available under s 11 of the Crimes (Appeal and Review) Act 2001. This Court may determine the appeal against conviction by setting aside the conviction or dismissing the appeal. [1]
1. See s 20 of the Crimes (Appeal and Review) Act 2001.
An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings subject to exceptions not presently relevant. [2] That evidence comprises a transcript of the Local Court proceedings and a bundle of exhibits in that Court. The question to be determined is whether this Court is satisfied beyond reasonable doubt of the guilt of Mr Crossgrove on…

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 Crossgrove (a Pseudonym) v The Queen

Details

AGLC: Crossgrove (a Pseudonym) v The Queen [2019] NSWDC 424
Case: [2019] NSWDC 424
Decision Date: 23 May 2019

CaseChat Overview and Summary

In this case, the appellant, Crossgrove, was convicted of aggravated indecent assault following an incident in which he attempted to kiss a dental assistant, slapped her on the backside, and grabbed her shoulder. The matter was heard in the Court of Appeal in Melbourne. Crossgrove appealed against both his conviction and his sentence, arguing that the trial magistrate erred in crediting the victim's evidence over his own. The Crown, however, submitted that the appeal should be dismissed and that the conviction should be upheld. One of the central issues before the court was whether the magistrate erred in crediting the victim's evidence over that of the appellant. The court examined the magistrate's findings and concluded that the magistrate was entitled to credit the victim's evidence and that there was no error in his findings.

The court also considered the probative value of the text messages exchanged between the parties prior to the incident. The appellant argued that the messages should not have been admitted as they did not have significant probative value. However, the court found that the messages were relevant to the appellant's state of mind and intentions at the time of the incident, and therefore had significant probative value. The court also rejected the appellant's argument that the evidence of his good character should have been admitted, finding that it was not relevant to the issues in the case. The court concluded that the magistrate's findings were open to him and that there was no error in his decision to credit the victim's evidence. The appeal against conviction was dismissed, and the appellant's conviction was upheld. The appeal against sentence was also dismissed.

Orders

Orders of the court

Dismiss the appeal against conviction

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Crossgrove (A Pseudonym) v R [2019] NSWDC 424
Hearing dates:	9, 11 and 12 April 2019
Date of orders:	23 May 2019
Decision date:	23 May 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	Dismiss the appeal against conviction
Catchwords:	CRIME – all grounds appeal – aggravated indecent assault – dentist assault of dental assistant – attempted kiss – slap on backside – grabbing shoulder – credit findings of Magistrate – tendency evidence – text messages – whether significant probative value
Legislation Cited:	Crimes (Appeal and Review) Act 2001, s 11, s 18, s 20 Evidence Act 1995, s 66, s 97, s 101
Cases Cited:	Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244 Eades v DPP (NSW) (2010) 77 NSWLR 173 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Johnson v Ramsden [2019] WASC 84 McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 R v Bauer (A Pseudonym) (2018) 359 ALR 359; [2018] HCA 40 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
Category:	Principal judgment
Parties:	Paul Daniel Crossgrove (Appellant) Regina (Respondent)
Representation:	Solicitors: Johnston Vaughan Solicitors (Appellant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/236831
Publication restriction:	NB: s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies any complainant or may lead to the identification of any complainant. As such pseudonyms have been used.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 31 August 2018 Before: Magistrate D Covington File Number(s): 2017/236831