DS v R

Case [2012] NSWCCA 159 26 July 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v Regina [2012] NSWCCA 159
Hearing dates: 30 March 2012
Decision date: 26 July 2012
Before: Beazley JA;
Harrison J;
McCallum J
Decision:
1. Appeal against conviction dismissed;
2. Grant leave to appeal against sentence;
3. Appeal against sentence allowed;
4. Confirm the sentences imposed in respect of counts 1 and 2;
5. Quash the sentences imposed in respect of counts 3 and 5;
6. Re-sentence the appellant in respect of counts 3 and 5 in the manner specified below, so that the sentences imposed on the appellant, including those imposed for counts 1 and 2, are as follows:
Count 2: A fixed term of 2 years to commence on 20 May 2009 and to expire on 19 May 2011;
Count 1: A fixed term of 2 years 6 months to commence on 20 November 2009 and to expire on 19 May 2012;
Count 3: A non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014;
Count 5: A non-parole period of 6 years 9 months to commence on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022;
7. Note that the earliest date on which the appellant is eligible for release is 19 February 2019.

Catchwords:
CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial was held according to law - Whether trial a nullity - Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) - Appellant not arraigned again after empanelment of jury - No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2).

CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Motive to lie an issue for the jury's determination - Crown Prosecutor's address to the jury drew attention to complainant's response - Whether the Crown Prosecutor's address resulted in a miscarriage of justice - Crown Prosecutor permitted to refer to complainant's evidence - Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying.

CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Whether trial judge's direction that there may be a number of reasons why a person has a motive to lie was inadequate - Trial judge directed jury to the complainant's response and reminded jury that Crown bore onus of proof beyond reasonable doubt - Trial judge's direction concluded that it was a matter…

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 DS v R

Details

AGLC: DS v R [2012] NSWCCA 159
Case: [2012] NSWCCA 159
Decision Date: 26 July 2012

CaseChat Overview and Summary

The appellant, DS, appealed against his conviction and sentence for sexual assault offences, contending that the trial was not held according to law and amounted to a nullity due to procedural errors. The appeal also argued that the trial judge made errors in the direction given to the jury and in the warning about the reliability of the complainant's evidence. The Crown prosecutor was also criticised for suggesting during their address to the jury that the complainant had no motive to lie, implying that the accused bore the onus to prove that the complainant was lying. Furthermore, the appellant argued that the trial judge erred in the sentencing of his non-parole period, misapplying the standard non-parole period for the offence committed, and erred in finding that the commission of the offences in the home was an aggravating feature. The appeal was heard in the Court of Criminal Appeal.

The central legal issues were whether the trial was conducted lawfully, if the trial judge provided adequate directions to the jury, if the Crown prosecutor's address led to a miscarriage of justice, and if the trial judge's sentencing decisions were in error. The court considered whether the procedural defects alleged in the appeal constituted a miscarriage of justice and if the total sentence imposed was appropriate.

The Court of Criminal Appeal found that the trial was conducted lawfully and the directions given by the trial judge to the jury were adequate. The court determined that the Crown prosecutor's comments during their address to the jury did not result in a miscarriage of justice as the trial judge had directed the jury that it was for them to assess the credibility of the complainant's evidence. The court held that the trial judge was not required to provide a specific warning about the reliability of admissions evidence as the defence counsel had agreed to the terms of the direction proposed by the trial judge. The court further found that there were no defects in the conduct of the case that amounted to a miscarriage of justice. Regarding the sentencing, the court allowed the appeal on the basis that the trial judge misstated the standard non-parole period for the offence and erred in finding that the commission of the offences in the home was an aggravating feature. However, the court held that no other sentence warranted in law for counts 1 and 2.

The appeal against conviction was dismissed. The appellant was re-sentenced following the appeal against sentence.

Orders