DV v R

Case [2017] NSWCCA 276


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DV v R [2017] NSWCCA 276
Hearing dates: 25 September 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Before: Hoeben CJ at CL at [1];
Latham J at [241];
N Adams J at [250]
Decision:

(1) Leave to rely upon conviction ground of appeal 1 is refused.
(2) Leave to rely upon conviction ground of appeal 2 is granted but the appeal is dismissed.
(3) Leave to appeal against sentence granted but the appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction and sentence appeals – applicant convicted of twelve out of fourteen charges – eight counts of sexual intercourse with a child and four counts of aggravated indecent assault – whether error in judge’s directions as to complaint – whether miscarriage of justice occasioned by absence of fresh evidence due to absence of important evidence – whether evidence fresh – whether evidence credible – whether a significant possibility that reasonable jury would have acquitted applicant – evidence not fresh – evidence not credible – no significant possibility that jury acting reasonably would have acquitted the applicant – conviction appeal dismissed – SENTENCE APPEAL – whether proper assessment of objective seriousness of offences – whether aggregate sentence was manifestly excessive – leave to appeal against sentence granted but sentence appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) ss 59, 61, 66, 78
Crimes Amendment (Sexual Offences) Act 2003 (NSW) – Schedule 1
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
Crimes (Sentencing Procedure) Act 1999 – ss 21A, 53A
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW) – ss 66(1) and (2)
Cases Cited: AK v R [2016] NSWCCA 238
AL v Regina [2017] NSWCCA 34
ALS v R [2013] NSWCCA 63
Aouad and El-Zayat v R [2011] NSWCCA 61
BIP v R [2011] NSWCCA 224
Bland v R [2014] NSWCCA 82
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Chamseddine v R [2017] NSWCCA 176
Delaney v R; R v Delaney [2013] NSWCCA 150
Dent v R [2017] NSWCCA 166
Cook v R [2010] NSWCCA 191
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Franklin v R [2016] NSWCCA 319
Gal v R [2015] NSWCCA 242
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Hong v Regina [2009] NSWCCA 242
House v The King [1936] HCA 40; 55 CLR 499
IMM v The Queen [2016] HCA 14; 257 CLR
Ith v R [2012] NSWCCA 70
JM v R [2014] NSWCCA 297
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118
Magnuson v R [2013] NSWCCA 50
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
MLP v R [2014] NSWCCA 183
MRW v R [2011] NSWCCA 260
Papakosmas v…

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DV v R [2017] NSWCCA 276
Case
[2017] NSWCCA 276
Decision Date

CaseChat Overview and Summary

The case of DV v R involved an appeal against both conviction and sentence by the applicant, who was convicted of twelve out of fourteen charges, including eight counts of sexual intercourse with a child and four counts of aggravated indecent assault. The applicant sought to appeal the conviction on the grounds of alleged errors in the judge's directions to the jury, the absence of fresh evidence that might have led to a different outcome, and the credibility of the evidence presented. Additionally, the applicant challenged the sentence, arguing that it was manifestly excessive and that the objective seriousness of the offences was not properly assessed.

The court examined whether there was any error in the judge's directions to the jury regarding the handling of the complainant's evidence, and whether the absence of certain evidence, which the applicant argued was "fresh" and could have led to a miscarriage of justice, was sufficient to warrant a new trial. The court found that the evidence in question was neither fresh nor credible, and that there was no significant possibility that a reasonable jury would have acquitted the applicant if the evidence had been considered. Consequently, the appeal against the conviction was dismissed. In relation to the sentence, the court determined that the sentence was not manifestly excessive and that the objective seriousness of the offences had been properly assessed, resulting in the dismissal of the sentence appeal, although leave to appeal against the sentence was granted.

In summary, the applicant's appeal against the conviction was dismissed, and while leave to appeal against the sentence was granted, the appeal itself was ultimately dismissed. The court's decision emphasised the importance of the credibility and timeliness of evidence in criminal trials and the appropriate assessment of both conviction and sentencing in such cases.

Orders

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Evidence

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