Macfarlan JA at [1]; Walton J at [90]; Wilson J at [135]
Decision:
(1) Grant leave to the applicant to appeal against his convictions and sentence.
(2) Dismiss the appeals.
Catchwords:
EVIDENCE – tendency evidence – criminal proceedings – applicant charged with historical sexual offences against six complainants – applicant an officer in NSW juvenile justice system and complainants young female inmates – whether uncharged sexual acts admissible as tendency evidence – ss 97, 101 Evidence Act – correctness standard of review – whether significant probative value substantially outweighed prejudicial effect – standard of proof to be applied to uncharged acts in multi-complainant case – sufficient similarities for cross-admissibility of tendency evidence in relation to all counts
EVIDENCE – exclusion of evidence – advance ruling made excluding evidence of psychologist witness under s 192A Evidence Act – evidence related to different inmates and different officer to those in this matter – evidence not relevant under s 55 Evidence Act – evidence properly excluded
SENTENCING – appeal against sentence – severity – whether aggregate sentence of imprisonment excessive – need for House v The King error – whether sentencing judge sentenced in accordance with sentencing practices at time and considered delay – overall no indication that sentence is manifestly excessive
[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.
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AGLC
Greenaway v R [2021] NSWCCA 253
Case
[2021] NSWCCA 253
Decision Date
CaseChat Overview and Summary
In the matter of Greenaway v R, the applicant was charged with various historical sexual offences against six complainants, all of whom were young female inmates at the time of the alleged offences. The applicant, who was an officer in the NSW juvenile justice system, faced a complex trial involving multiple complainants and allegations. The primary legal issues before the court included the admissibility of uncharged sexual acts as tendency evidence under sections 97 and 101 of the Evidence Act, the appropriate standard of proof for uncharged acts in a multi-complainant case, and whether the acts had sufficient similarities for cross-admissibility in relation to all counts. Additionally, the court had to consider an advance ruling excluding evidence from a psychologist witness, which related to different inmates and a different officer, and determine whether this exclusion was justified under the Evidence Act.
The court assessed the admissibility of the tendency evidence under a correctness standard of review, focusing on whether the probative value of the evidence substantially outweighed its prejudicial effect. The court examined the standard of proof necessary for uncharged acts in a multi-complainant case and found that there were sufficient similarities between the acts to allow for cross-admissibility. Regarding the psychologist's evidence, the court determined that it was not relevant under section 55 of the Evidence Act and was properly excluded under section 192A. The court further considered the sentencing appeal, examining whether the aggregate sentence of imprisonment was excessive and whether the sentencing judge adhered to contemporary sentencing practices and appropriately accounted for the delay. Ultimately, the court found no indication that the sentence was manifestly excessive.
The court concluded that the tendency evidence was admissible as it met the criteria set out in the Evidence Act, and the psychologist's evidence was rightly excluded. The court also upheld the sentence, finding no error in the sentencing judge's approach. The final orders of the court affirmed the admission of the tendency evidence, upheld the exclusion of the psychologist's evidence, and dismissed the appeal against the sentence.