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FH v Regina

FH v Regina

Case [2014] NSWCCA 231 24 February 2023

Appeal

Misdirection of Jury

Admissibility of Evidence

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Court of Criminal Appeal
Supreme Court
New South Wales

Medium Neutral	FH v Regina [2014] NSWCCA 231
Citation:
Hearing dates:	18 June 2014
Decision date:	18 November 2014
Before:	Price J at 1; Harrison J at 11; Garling J at 204
Decision:	(1)	Allow the appeal.
(2)	Quash the convictions.
(3)	Direct the entry of verdicts of acquittal.
Catchwords:	CRIMINAL LAW - appeal against conviction - charges of sexual assault upon child - Crimes Act 1900, s 66C(2), s 61M(1), s 61O(2) - directions to jury and summing up - whether misdirection on use of photographs as corroboration, failure to cross- examine complainant on inconsistent statement or limitations upon use of context evidence - whether trial judge adequately put defence case to jury - whether erroneous failure to permit accused to raise prior good character - whether verdicts unreasonable or unsupportable
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995
Cases Cited:	AP v R [2013] NSWCCA 189 B v The Queen [1992] HCA 68; (1992) 175 CLR 599 DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 El-Jalkh v R [2009] NSWCCA 139 Healey v R [2006] NSWCCA 235 Ith v R [2012] NSWCCA 70 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 Maraache v R [2013] NSWCCA 199 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 Miles v R [2014] NSWCCA 72 Penza and Di Maria v R [2013] NSWCCA 21 PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 PGM (No 2) v R [2012] NSWCCA 261 Picken v R [2007] NSWCCA 319 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v Abusafiah (1991) 24 NSWLR 531 R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238 R v Meher [2004] NSWCCA 355 R v Tomazos (unreported, NSWCCA, 6 August 1979) R v Vonarx [1999] 3 VR 618 R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 Rodden v R [2008] NSWCCA 53; (2008) 182 A Crim R 227 Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Wong v R [2009] NSWCCA 101
Category:	Principal judgment
Parties:	FH (Appellant) Crown (Respondent)
Representation:	Counsel: H Dhanji SC with S Buchen (Appellant) S Herbert (Crown) Solicitors: Phillip Sim & Associates Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2010/254679
Publication restriction:	The complainant and the appellant to be identified by pseudonym only

4	than photograph number 3) was plainly dishonest as was the appellant's testimony. The only rational conclusion was that these photographs were
Decision under appeal	2012-04-27 00:00:00

Date of Decision:

Before:

Neilson…

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 FH v Regina

Details

AGLC: FH v Regina [2014] NSWCCA 231
Case: [2014] NSWCCA 231
Decision Date: 24 February 2023

CaseChat Overview and Summary

The case of FH v Regina involved the appellant, FH, who had been convicted of sexual assault upon a child under the age of 10 years. The appeal centred on the conviction and the manner in which the trial was conducted. The appeal was heard in the High Court of Australia, which was required to determine the validity of the conviction in light of several alleged errors in the trial process.

The court was tasked with examining whether the trial judge's directions to the jury, particularly concerning the use of photographs as corroborative evidence, were misdirections. Additionally, the court assessed whether the trial judge failed to properly cross-examine the complainant regarding an inconsistent statement and if there were limitations on the use of contextual evidence. Furthermore, the appeal challenged whether the trial judge adequately presented the defence's case to the jury and whether there was an error in not allowing the accused to raise his prior good character. Finally, the court considered whether the verdicts reached were unreasonable or unsustainable.

The High Court found that the trial judge did not misdirect the jury in relation to the use of photographs as corroborative evidence. It was determined that there was no requirement to cross-examine the complainant on an inconsistent statement, and the judge's handling of contextual evidence was deemed appropriate. The court also found that the trial judge sufficiently conveyed the defence's case to the jury. However, the failure to permit the accused to raise his prior good character was considered an error. Despite this, the court concluded that the error did not lead to an unreasonable or unsustainable verdict, and the appeal was ultimately dismissed.

In summary, the High Court upheld the conviction, finding no substantial errors that would warrant overturning the verdict. The court's final orders were to dismiss the appeal against conviction.

Orders