Greenaway v R

Case [2021] NSWCCA 253


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Greenaway v R [2021] NSWCCA 253
Hearing dates: 30 August 2021
Date of orders: 1 November 2021
Decision date: 01 November 2021
Before: 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

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW), ss 59, 61, 63, 76, 79

Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Criminal Procedure Act 1986 (NSW), s 142

Evidence Act 1995 (NSW), ss 55, 97, 100, 101, 192A

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

ABR (a pseudonym) v R [2020] NSWCCA 33

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Clarke v R [2021] NSWCCA 236

Decision Restricted [2021] NSWCCA 201

Doyle v R; R v Doyle [2014] NSWCCA 4

Hamilton v R [2020] NSWCCA 80

Henderson v R [2016] NSWCCA 8

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Kirby v R [2021] NSWCCA 162

Long (a pseudonym) v R [2021] NSWCCA 212

Magnuson v R [2013] NSWCCA 50

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37

Qualtieri v R [2006] NSWCCA 95; (2006) 171 A…

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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.

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

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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