Fisher v The King - [2024] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fisher v R [2024] NSWCCA 68
Hearing dates: 26 February 2024
Date of orders: 10 May 2024
Decision date: 10 May 2024
Before: Harrison CJ at CL at [1];
Cavanagh J at [122];
McNaughton J at [127]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – sexual touching contrary to 66DB(a) Crimes Act 1900 (NSW) – aggravated detention with intent to obtain advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW) – whether Crown’s closing address caused a miscarriage of justice – asserted reliance on matters not the subject of evidence – asserted reliance on matters subject to a tendency application brought by the applicant but successfully objected to by the Crown – asserted use of inflammatory words – whether verdicts unreasonable – whether the complainant’s credibility is undermined because of her agitated presentation when giving evidence – whether complainant’s evidence can be accepted having regard to its evolution from her initial complaint to pre-trial evidence – whether independent objective evidence undermines the alleged timing of events – leave granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Supreme Court (Criminal Appeal) Rules 1970 (NSW)

Cases Cited:
Bolton v R [2023] NSWCCA 211
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Palmer v R [2018] NSWCCA 205
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
WC v R [2012] NSWCCA 231
Xie v R [2022] NSWCCA 185

Category: Principal judgment
Parties: Owen Charles Fisher (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Stares SC (Applicant)
E Nicholson (Respondent)
Solicitors:
Hammond Nguyen Turnbull (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/325874
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Date of Decision:

27 March 2023 (verdict);
7 July 2023 (sentence)

Before:

Girdham SC DCJ

File Number(s):

2020/325874

HEADNOTE

[This headnote is not to be read as part of the judgment]

Owen Charles Fisher was convicted by a jury in the District Court on 27 March 2023 of one count of intentionally sexually touch contrary to s 66DB(a) Crimes Act 1900 (NSW) (Count 1) and one count of detain with intent to obtain an advantage (sexual gratification) in circumstances of aggravation (inflict actual bodily harm) contrary to s 86(2)(b) Crimes Act 1900 (Count 3). The jury was unable to reach a verdict on another count of intentionally sexually touch (Count 2). The primary judge sentenced Mr Fisher to an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years.

Mr Fisher lived with WA…

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 Fisher v The King

Details

AGLC: Fisher v The King [2024] NSWCCA 68
Case: [2024] NSWCCA 68
Decision Date: 10 May 2024

CaseChat Overview and Summary

Fisher was convicted in the District Court of New South Wales of sexual touching and aggravated detention contrary to the Crimes Act 1900 (NSW). Fisher appealed the convictions to the NSW Court of Criminal Appeal, submitting that the Crown's closing address may have led to a miscarriage of justice. Fisher argued that the closing address relied on matters not in evidence, included matters subject to a tendency application brought by the applicant but successfully objected to by the Crown, and contained inflammatory language. Fisher also argued that the complainant's credibility was undermined by her agitated presentation when giving evidence and that her evidence was inconsistent. Fisher further submitted that the complainant's evidence could not be accepted due to its evolution from her initial complaint to her pre-trial evidence. Finally, Fisher argued that independent objective evidence undermined the alleged timing of events.

The Court of Criminal Appeal held that there was no miscarriage of justice in the convictions. The Court found that the Crown's closing address did not rely on matters not in evidence or contain inflammatory language. The Court further found that the complainant's credibility was not undermined by her presentation when giving evidence and that her evidence was consistent. The Court held that the complainant's evidence could be accepted, despite its evolution from her initial complaint to her pre-trial evidence. The Court also found that the independent objective evidence did not undermine the alleged timing of events.

The Court of Criminal Appeal dismissed the appeal and affirmed the convictions. The Court held that Fisher's convictions were supported by the evidence and that the trial judge had not erred in his directions to the jury. The Court also held that the verdicts were not unreasonable and that the trial judge had properly considered all of the evidence before him.

Orders