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.
[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.
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AGLC
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.