Basten JA at [1]; Simpson J at [38]; Davies J at [238]
Decision:
(1) Appeal against conviction dismissed;
(2) Leave granted to appeal against sentence;
(3) Appeal against sentence dismissed.
Catchwords:
APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone; Criminal Procedure Act 1986 (NSW), s 133 - obligation to state relevant principles of law - whether explicit reference need be made to presumption of innocence - principle of presumption of innocence is not separate to or distinct from the onus and standard of proof
APPEAL - conviction - whether trial judge erred in failing to give warning under Evidence Act 1995 (NSW), s 165(1)(c) - whether reliability of complainant’s evidence affected by intoxication - no request for warning made - intoxication not in issue at trial
APPEAL - conviction – whether error in failing to direct that evidence of flight as consciousness of guilt not applicable - Edwards v The Queen [1993] HCA 63 - trial judge made no such inference
APPEAL - conviction - whether error in assessment of witness reliability
APPEAL - conviction - whether verdict unsafe or unsound - Criminal Appeal Act 1912 (NSW), s 6(1) - appeal dismissed
APPEAL - sentence - Crimes (Sentencing Procedure) Act 1999 NSW, s 21A(2)(eb) - offence committed in home - use of home to host party irrelevant
APPEAL - sentence - erroneous sentence - wrong application of totality principle - identification of offences as “mid-range” - whether sentences unduly harsh and severe - leave to appeal granted - 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
Ewen v R [2015] NSWCCA 117
Case
[2015] NSWCCA 117
Decision Date
CaseChat Overview and Summary
In the matter of Ewen versus The Queen, the appellant sought to challenge his conviction and sentence for sexual intercourse without consent, as per section 61I of the Crimes Act 1900 (NSW). The case was heard in the Court of Criminal Appeal. The appellant raised several issues for consideration, including whether the trial judge was obligated to explicitly reference the presumption of innocence, whether a “Murray direction” was required, if there was an error in failing to warn about the reliability of the complainant’s evidence due to intoxication, whether the trial judge should have directed that evidence of flight was not applicable as consciousness of guilt, and whether there was an error in the assessment of the reliability of the witness. Furthermore, the appellant contended that the sentence was erroneous, claiming it was unduly harsh and severe, and that the totality principle was not correctly applied.
The court considered the appellant's arguments and examined the legal obligations and principles involved. It found that the principle of the presumption of innocence is inherently part of the onus and standard of proof, and therefore, an explicit reference to it was not necessary. The court also held that the trial judge was not required to give a “Murray direction” because the evidential issues were not solely based on the lack of corroboration. Regarding the warning about the reliability of the complainant's evidence, the court held that no such warning was required as intoxication was not in issue at trial. The court found no error in the trial judge's direction on flight as consciousness of guilt, as no such inference was made. Additionally, the court found no error in the assessment of the witness's reliability and concluded that the verdict was safe and sound.
The appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed. However, leave to appeal was granted on the ground that the sentence was erroneous due to the wrong application of the totality principle. The court concluded that the sentences were not unduly harsh or severe, and the identification of the offences as “mid-range” was appropriate.