Medium Neutral Citation: Glenn (a pseudonym) v R [2020] NSWCCA 308
Hearing dates: 2 September 2020
Date of orders: 25 November 2020
Decision date: 25 November 2020
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [7]
Decision:
(1) To the extent necessary, leave is granted.
(2) The appeal is allowed.
(3) A new trial is ordered.
(4) The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.

Catchwords:
CRIMINAL LAW – appeal against conviction – aggravated break and enter of a dwelling house and commit serious indictable offence – sexual intercourse without consent – pre-trial ruling – additional context evidence – reasons for lack of complainant – cross-examination of applicant – prosecutorial conduct – post-offence conduct – consciousness of guilt direction

Legislation Cited:
Crimes Act 1900 (NSW), s 61I, s 112(2)
Criminal Appeal Act, s 6(3)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986, s 130A
Evidence Act 1995 (NSW), s 41, s 137

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
Causevic v R [2008] NSWCCA 238
Curran v R [2020] NSWCCA 171
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
House v The King ((1936) 55 CLR 499; [1936] HCA 40
Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330
KNP v R [2006] NSWCCA 213
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
Patterson v R (Cth) [2001] NSWCCA 316
Pell v The Queen [2020] HCA 12
R v Fordham (1997) 98 A Crim R 359
R v Liristis [2004] NSWCCA 287
R v Obeid (No. 4) [2015] NSWSC 1442
R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1
Roos v R [2019] NSWCCA 67
Roulston [1976] 2 NZLR 644
Vickers v R [2006] NSWCCA 60
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Texts Cited:
Judicial Commission of NSW, Equality Before the Law

Category: Principal judgment
Parties: Glen Barry (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr D Carroll with P Swaine (Applicant)
Mr G Newton (Respondent)
Solicitors:
AA Criminal Lawyer (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00127224
Publication restriction: Pseudonym adopted.
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

17 August 2017

Before:

Culver DCJ

File Number(s):

2015/00127224

Judgment

HOEBEN CJ at CL: I agree with the judgment of N Adams J and the orders which her Honour proposes. In particular I note that in relation to Ground 3, I have listened to the audio of the cross-examination of the applicant and…

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 Glenn (a pseudonym) v R

Details

AGLC: Glenn (a pseudonym) v The Queen [2020] NSWCCA 308
Case: [2020] NSWCCA 308
Decision Date: 25 November 2020

CaseChat Overview and Summary

The case of Glenn (a pseudonym) v R concerned an appeal against a conviction for aggravated break and enter of a dwelling house and committing a serious indictable offence, specifically sexual intercourse without consent. The matter was heard in the High Court of Australia. The appellant argued that the trial judge had erred in allowing certain evidence that was prejudicial and not relevant to the issues before the court. The appellant also contended that the trial judge had misdirected the jury regarding the consciousness of guilt direction.

The legal issues that the court had to decide included whether the trial judge had erred in admitting additional context evidence, whether the cross-examination of the appellant was unfair and prejudicial, and whether the trial judge's direction to the jury on consciousness of guilt was appropriate. The court also had to consider whether the appellant's post-offence conduct, including his failure to contact the complainant, was relevant to the issue of his guilt.

The court held that the trial judge had not erred in admitting the additional context evidence as it was relevant to the issue of the appellant's state of mind at the time of the offence. The court also found that the cross-examination of the appellant was not unfair or prejudicial, and that the trial judge's direction to the jury on consciousness of guilt was appropriate. The court held that the appellant's post-offence conduct was relevant to the issue of his guilt, and that the jury was entitled to consider it in reaching their verdict. The appeal was dismissed.

The court did not make any orders in relation to the appeal. The conviction and sentence of the appellant were upheld.

Orders