Franklin v Regina

Case [2021] NSWCCA 260


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Franklin v Regina [2021] NSWCCA 260
Hearing dates: 10 May 2021
Decision date: 08 November 2021
Before: McCallum JA; Beech-Jones J; Hamill J
Decision:

(1) Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction.

(2) Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3.

(3) Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020.

(4) Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021.

(5) Dismiss the appeal.

Catchwords:

CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant’s credibility – whether “fresh evidence” – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable

Legislation Cited:

Criminal Procedure Act 1986 s 293

Crimes Act 1900 (NSW), ss 61, 61J(1), 86(2)(b)

Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1), 12(1)

Evidence Act 1995 (NSW), ss 135, 136, 137

Jury Act 1977 (NSW), s 53B(d)

Cases Cited:

Caleo v R [2021] NSWCCA 179

Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72

GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

MRW v R [2011] NSWCCA 260

Norman v R [2012] NSWCCA 230

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

R v Thompson [2014] EWCA 836

Rattenv The Queen (1974) 131 CLR 510

RD (a pseudonym) v R [2021] NSWCCA 94

S v R [2008] EWCA Crim 6

Thompson v R [2014] EWCA 836

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Xie v R [2021] NSWCCA 1

Texts Cited:

Maras, K, Crane, L, Walker, L, & Memon, A (2019) Brief report: Perceived credibility of autistic witnesses and the effect of diagnostic information on credibility ratings. Research in Autism Spectrum Disorders, 68, Article 101442.

Category:Principal judgment
Parties: Craig Franklin (Applicant)
Regina (Crown)
Representation:

Counsel:
In person (Applicant)
C Young (Crown)

Solicitors:
Unrepresented (Applicant)
Office of the Director of Public Prosecutions (Crown)
File Number(s): 2008/11561
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
18 September 2009
Before:
Nicholson SC DCJ
File Number(s):
2008/11561

Judgment

  1. THE…

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Franklin v Regina [2021] NSWCCA 260
Case
[2021] NSWCCA 260
Decision Date

CaseChat Overview and Summary

The applicant appealed against his convictions for a number of sex offences and an offence of assault occasioning actual bodily harm, contending that the trial judge had erred in admitting DNA evidence, in not discharging a juror or the jury, and in declining to admit fresh evidence. The applicant also claimed that the verdicts were unreasonable and that there had been a miscarriage of justice. The evidence suggested that the applicant had assaulted and sexually abused a woman. The applicant argued that the trial judge had erred in admitting DNA evidence, as the chain of custody had not been proven. However, the Court found that the trial judge was correct in concluding that the chain of custody was established and the evidence was properly admitted. The applicant also argued that the trial judge should have discharged a juror who had not disclosed that she had been a victim of domestic violence. The Court found that the trial judge was correct in concluding that there was no basis to discharge the juror, as the juror's experience did not affect her ability to be impartial. The applicant further argued that the trial judge should have discharged the jury because of expert reports that undermined the credibility of the complainant. The Court found that the trial judge was correct in concluding that the reports did not undermine the credibility of the complainant. The applicant also argued that the trial judge should have admitted fresh evidence, including expert reports that undermined the credibility of the complainant, and a report from a psychologist about the implications of his diagnosis of Autistic Spectrum Disorder. The Court found that the evidence was not fresh and could not be admitted. Finally, the applicant argued that the verdicts were unreasonable and that there had been a miscarriage of justice. The Court found that the verdicts were not unreasonable and that there had been no miscarriage of justice. The applicant's appeal was dismissed.

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Background

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Decision

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