CV v The The King - [2022] NSWCCA 264

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CV v R [2022] NSWCCA 264
Hearing dates: 28 November 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Before: Beech-Jones CJ at CL at [1];
Walton J at [53];
Yehia J at [54]
Decision:
(1) The Applicant be granted leave to appeal.
(2) The Appeal be dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — whether Crown invited jury to draw adverse inferences due to failure to mention circumstances relevant to defence in ERISP — application of s 89A of Evidence Act 1995 (NSW) — whether trial judge not giving direction occasioned miscarriage of justice — where direction not sought by trial counsel — appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B
Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61L, 61M(1), 61M(2), 61O(2), 66A, 578A
Criminal Appeal Act 1912 (NSW), s 5(1)
Evidence Act 1995 (NSW), ss 38, 89A, 89A(1), 89A(3) - (9), 89(1),
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Cox v R [2022] NSWCCA 66
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Haile v R [2022] NSWCCA 71
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Category: Principal judgment
Parties: CV (Applicant)
Rex (Respondent)
Representation:
Counsel:
Ms M Cuneen SC; Ms S Goodwin; Ms F Clark (Applicant)
Ms S Traynor (Respondent)
Solicitors:
Greenfield Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/177973
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 November 2021

Before:

O’Rourke SC DCJ

File Number(s):

2017/177973

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial in the District Court, CV (the applicant) was convicted of 12 historical sexual offences committed against children between 1984 and 2009. The applicant was subsequently sentenced to a substantial term of imprisonment.

There were five alleged victims of the applicant’s offences namely KM, LP, TN, SN and TL. They were all nieces of the applicant’s partner, TM. Each of the alleged victims gave direct evidence in support of the counts concerning them. The Crown led evidence from these complainants and other members of their respective families including TH who was the mother of KM and LP and the sister of the applicant’s partner, TM.

During the cross-examination of TH by trial counsel for the applicant, it was put to her that in 1988 she had a dispute with TM and the applicant about a sum of $5000 it was alleged that TH owed the applicant and TM for work they had undertaken. TM denied owing any more or that there was any dispute. It was also put to TH that, after hearing KM’s complaint, TH confronted the applicant and told him he needed to…

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 CV v The The King

Details

AGLC: CV v The The King [2022] NSWCCA 264
Case: [2022] NSWCCA 264
Decision Date: 09 December 2022

CaseChat Overview and Summary

In this case, CV appealed against a conviction for a crime in the Supreme Court of New South Wales. The appeal hinged on whether the Crown was permitted to draw adverse inferences from the defendant's failure to mention circumstances relevant to the defence in their evidence-in-chief. The crux of the appeal was whether section 89A of the Evidence Act 1995 (NSW) applied and if the trial judge's failure to give a specific direction amounted to a miscarriage of justice, particularly since no such direction was sought by the trial counsel.

The primary legal issue before the court was the interpretation and application of section 89A of the Evidence Act 1995 (NSW) in the context of adverse inferences drawn from the defendant's failure to mention defence-relevant circumstances. The court examined whether the Crown was entitled to such inferences and if the trial judge's omission to provide a direction on this matter, without a request from the defence, constituted a miscarriage of justice. This involved a detailed analysis of the statutory provisions and their interaction with the procedural and substantive law governing criminal trials.

The court found that the Crown was not entitled to draw adverse inferences from the defendant's failure to mention defence-relevant circumstances, as section 89A of the Evidence Act 1995 (NSW) did not apply in the circumstances of this case. Furthermore, the court held that the trial judge's failure to give a direction on this issue did not occasion a miscarriage of justice, particularly given that no such direction was sought by the trial counsel. Consequently, the appeal was dismissed. The court's reasoning was based on the clear interpretation of the statutory provisions and the procedural context in which the trial was conducted.

Orders