DN v R

Case [2016] NSWCCA 252 10 November 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DN v R [2016] NSWCCA 252
Hearing dates: 2 September 2016
Decision date: 10 November 2016
Before: Beazley P at [1];
Davies J at [113];
Garling J at [114]
Decision:
1.   Grant leave to appeal against conviction;

2.   Appeal against conviction dismissed;

3.   Grant leave to appeal against sentence;
4.   Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW – appeal against conviction – whether leave to appeal should be granted – directions to jury – consciousness of guilt reasoning – post-offence conduct – destruction or disposal of evidence – whether trial judge erred in failing to direct jury in relation to consciousness of guilt – whether the evidence could rationally support an inference of guilt – whether failure to direct occasioned a substantial miscarriage of justice
CRIMINAL LAW – appeal against sentence – whether leave to appeal should be granted – objective seriousness of the offence – age of complainant as an aggravating factor – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Rules
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
ARS v R [2011] NSWCCA 266
Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34
Edwards v R (1998) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1
Mulato v R [2006] NSWCCA 282
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Ciantar; DPP v Ciantar (2006) 167 A Crim R; [2006] VSCA 263
R v Cook [2004] NSWCCA 52
R v GJH (2001) 122 A Crim R 361; [2001] NSWCCA 128
R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20
R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Zoneff v the Queen (2000) 200 CLR 234; [2000] HCA 28
Category: Principal judgment
Parties: DN (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Gartelmann SC (Appellant)
S Dowling SC (Respondent)
Solicitors:

File Number(s): 2013/314714
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 July 2015

Before:

Frearson SC DCJ

File Number(s):

2013/314714

HEADNOTE

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

The complainant was an employee of the video store which the appellant managed. The appellant was convicted of one count of sexual intercourse with a person under the age of 16 years contrary to the Crimes Act 1900

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 DN v R

Details

AGLC: DN v R [2016] NSWCCA 252
Case: [2016] NSWCCA 252
Decision Date: 10 November 2016

CaseChat Overview and Summary

In this appeal, DN is the appellant and R is the respondent. The appeal concerns two primary issues: the first is an appeal against the conviction for burglary, and the second is an appeal against the sentence imposed. The matter was heard in the High Court of Australia. The appellant was convicted of entering a dwelling with the intent to commit an indictable offence. The appeal against conviction challenges the trial judge's direction to the jury regarding consciousness of guilt, specifically whether the trial judge erred by not directing the jury about this concept. The appeal against sentence contests the trial judge's consideration of the age of the complainant as an aggravating factor and whether the sentence imposed was manifestly excessive.

The court had to determine whether the trial judge erred by not directing the jury on consciousness of guilt and whether this failure resulted in a substantial miscarriage of justice. The court also considered whether the evidence could rationally support an inference of guilt based on the appellant's post-offence conduct. In reviewing the appeal against sentence, the court examined whether the trial judge correctly considered the age of the complainant as an aggravating factor and if the sentence was manifestly excessive. The court had to balance these considerations against the objective seriousness of the offence and the principles of sentencing.

The High Court held that there was no error in the trial judge's direction to the jury, as the evidence did not rationally support an inference of guilt based on consciousness of guilt. The court found that the evidence was sufficient to support the jury's conclusion and that the failure to direct on consciousness of guilt did not occasion a substantial miscarriage of justice. Regarding the appeal against sentence, the court determined that the trial judge appropriately considered the age of the complainant as an aggravating factor and that the sentence was not manifestly excessive. The court concluded that the appeal against conviction and sentence should not be allowed.

The final orders of the court were that the appeals against conviction and sentence be dismissed. The convictions and sentences imposed by the trial court were upheld.

Orders