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Davis v The King

Davis v The King

Case [2024] NSWCCA 120 12 July 2024

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Davis v R [2024] NSWCCA 120
Hearing dates: 26 June 2024
Decision date: 12 July 2024
Before: Adamson JA at [1];
Price AJA at [171];
Garling J at [180]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against conviction — inconsistent verdicts — whether guilty verdict on count of aggravated indecent assault was inconsistent with acquittal on count of aggravated sexual assault — where sole evidence of both counts was that of the complainant — where the two counts allegedly occurred in sequence — whether there was a rational explanation for the different verdicts
CRIME — appeals — appeal against conviction — unreasonable verdict — whether guilty verdicts could be supported having regard to the evidence — where large majority of the evidence was that of the complainant — where there were inconsistencies in complainant’s evidence — whether complainant’s evidence lacked credibility — whether it was unreasonable for the jury to accept the complainant’s version — where complainant was a 14-year-old indigenous boy

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 61J
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 293A, 294

Cases Cited:
AS v R [2022] NSWCCA 291
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Decision Restricted [2024] NSWCCA 81
Lee v R [2023] NSWCCA 203
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nguyen v R [2017] NSWCCA 145
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v ACK [2000] NSWCCA 180
R v Johnston (1998) 45 NSWLR 362
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Reed v R [2006] NSWCCA 314
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: Bradley Michael Davis (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC / R McMahon (Applicant)
M Millward (Respondent)
Solicitors:
McIntosh McPhillamy & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/17228
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 November 2022

Before:

Smith SC DCJ

File Number(s):

2021/17228

HEADNOTE

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

Bradley Davis (the applicant) was convicted of two counts of aggravated indecent assault of a child under 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (counts 2 and 3 on the indictment) following a trial by jury…

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 Davis v The King

Details

AGLC: Davis v The King [2024] NSWCCA 120
Case: [2024] NSWCCA 120
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the case of Davis v The King, the appellant was convicted of aggravated indecent assault by the County Court of Victoria, while the jury acquitted him of aggravated sexual assault. The court of appeal was tasked with determining whether the guilty verdict on the count of aggravated indecent assault was inconsistent with the acquittal on the count of aggravated sexual assault, and whether the guilty verdict was unreasonable given the evidence presented. The complainant, a 14-year-old Indigenous boy, provided the sole evidence for both counts, which involved two separate incidents that allegedly occurred in sequence. The court had to consider whether there was a rational explanation for the inconsistent verdicts and whether the jury's acceptance of the complainant's version was reasonable, given the inconsistencies in his evidence.

The court examined the nature of the evidence provided by the complainant and the inconsistencies therein. It considered whether these inconsistencies were significant enough to render the complainant's evidence lacking in credibility, and whether it was unreasonable for the jury to accept the complainant's version of events. The court also assessed whether the guilty verdict on the count of aggravated indecent assault was supported by the evidence, despite the acquittal on the count of aggravated sexual assault. The court found that there was a rational explanation for the inconsistent verdicts, as the jury may have accepted the complainant's evidence regarding the indecent assault but found it insufficient to prove the more serious charge of aggravated sexual assault beyond reasonable doubt.

The appeal was ultimately dismissed, as the court found that the jury's verdict on the count of aggravated indecent assault was not inconsistent with the acquittal on the count of aggravated sexual assault, and that the guilty verdict was reasonable given the evidence presented. The court held that it was open to the jury to accept the complainant's evidence regarding the indecent assault while finding it insufficient to prove the more serious charge. The court also found that the inconsistencies in the complainant's evidence did not necessarily undermine the credibility of his account regarding the indecent assault. As a result, the appellant's conviction for aggravated indecent assault was upheld.

In summary, the court of appeal dismissed the appellant's appeal against conviction, affirming the County Court's decision to convict him of aggravated indecent assault. The court found that the inconsistent verdicts were rational and that the guilty verdict was reasonable given the evidence presented. The court held that the jury was entitled to accept the complainant's evidence regarding the indecent assault while finding it insufficient to prove the more serious charge of aggravated sexual assault. The appeal was dismissed, and the conviction for aggravated indecent assault was upheld.

Orders