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Golding v The King

Golding v The King

Case [2024] NSWCCA 129 17 July 2024

Appeal

Jurisdiction

Miscarriage of Justice

Admissibility of Evidence

Tendency Evidence

Context Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Golding v R [2024] NSWCCA 129
Hearing dates: 7 June 2024
Date of orders: 17 July 2024
Decision date: 17 July 2024
Before: Basten AJA at [1];
N Adams J at [59];
Huggett J at [68]
Decision:
Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, refuse the applicant leave to appeal on the ground contained in the proposed notice of appeal.

Catchwords:
CRIME – appeal against conviction – leave to appeal– challenge to jury directions – no objection taken at trial to proposed directions – no redirection or further direction sought – whether miscarriage of justice – application of Supreme Court (Criminal Appeal) Rules 2021, r 4.15
CRIME – miscarriage of justice – tendency evidence – context evidence – single count indictment – evidence of uncharged incident admitted as tendency and context evidence – jury directed to disregard evidence of uncharged incident if not satisfied it occurred – whether jury required to be directed that doubt as to uncharged incident should be considered in assessing complainant’s evidence as to charge – inconsistency between Markuleski direction and proper consideration of tendency evidence and context evidence

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), ss 161A, 293A(2)
Evidence Act 1995 (NSW), ss 97, 101
Jury Directions Act 2015 (Vic), ss 61, 62
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Astill v R [2024] NSWCCA 118
Day v Rex (No 2) [2023] NSWCCA 312
Greenhalgh v R [2017] NSWCCA 94
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Regina v GAR [2003] NSWCCA 224
Roos v R [2019] NSWCCA 67
R v Birks ((1990) 19 NSWLR 677
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
RWC v R [2013] NSWCCA 58
Sita v R [2022] NSWCCA 90
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Zhou v R [2021] NSWCCA 278

Texts Cited:
Criminal Trial Courts Bench Book (Judicial Commission of NSW)

Category: Principal judgment
Parties: Bruce Wayne Golding (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
G Wright SC (Respondent)
Solicitors:
Macquarie Law Group (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/184634
Publication restriction: Publication of any information that identifies the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 November 2023

Before:

McHugh SC DCJ

File Number(s):

2021/184634

JUDGMENT

BASTEN AJA: Following a trial by jury in the District Court, the applicant, Bruce Wayne Golding, was found guilty on one count of indecent assault on his step-grandchild (the complainant) who was then about six years of age. He was sentenced to a non-parole period of 18 months,…

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 Golding v The King

Details

AGLC: Golding v The King [2024] NSWCCA 129
Case: [2024] NSWCCA 129
Decision Date: 17 July 2024

CaseChat Overview and Summary

The appellant, Golding, appealed against his conviction for an offence under section 215 of the Crimes Act 1900 (NSW). The matter came before the Court of Criminal Appeal in New South Wales, which was required to decide whether the appeal should be granted, and if so, what orders should be made in relation to the conviction and sentence. The central issue was whether the trial judge’s directions to the jury regarding the use of tendency and context evidence in the case resulted in a miscarriage of justice.

Golding argued that the trial judge's directions concerning the use of uncharged incident evidence did not adequately address the principles applicable to such evidence under the common law. He submitted that the jury should have been directed to consider any doubt about the uncharged incident when assessing the credibility of the complainant's evidence in relation to the charged offence. The Crown maintained that no miscarriage of justice had occurred because the judge's directions were sufficient and in line with the legal principles governing the admissibility and use of tendency and context evidence.

The Court of Criminal Appeal found that the trial judge's directions were insufficient as they did not properly address the interplay between the principles governing tendency evidence and the Markuleski direction. The court concluded that the omission to direct the jury to consider any doubt about the uncharged incident when assessing the complainant's credibility in relation to the charged offence constituted a miscarriage of justice. Consequently, the appeal was allowed, the conviction was quashed, and a re-trial ordered.

Orders