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Franklin v Regina

Franklin v Regina

Case [2021] NSWCCA 260 8 November 2021

Appeal

Admissibility of Evidence

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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

THE…

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 Franklin v Regina

Details

AGLC: Franklin v Regina [2021] NSWCCA 260
Case: [2021] NSWCCA 260
Decision Date: 08 November 2021

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.

Orders