Golding v The King

Case [2024] NSWCCA 129


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

  1. 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,…

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Golding v The King [2024] NSWCCA 129
Case
[2024] NSWCCA 129
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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