GS v The The King - [2022] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GS v R [2022] NSWCCA 225
Hearing dates: 27 June 2022
Date of orders: 19 October 2022
Decision date: 19 October 2022
Before: Beech-Jones CJ at CL at [1]
Garling J at [61]
Wilson J at [65]
Decision:
(1) The Applicant be granted leave to raise ground 4 of the notice of appeal;
(2) The Appeal be dismissed.

Catchwords:
CRIMINAL LAW – conviction appeal – applicant found guilty of one count of sexual assault – trial by judge alone – context evidence as to systemic sexual assault of victim, siblings and cousins by other members of the family – whether verdict was unreasonable and cannot be supported by the evidence – approach to trial by judge alone – asserted inconsistencies and delay by victim in coming forward – ground rejected – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Category: Principal judgment
Parties: GS (Applicant)
The King (Respondent)
Representation:
Counsel:
Mr P Doyle (Applicant)
Ms M Millward (Respondent)
Solicitors:
Hammond Nguyen Turnbull Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00102533
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 and s 15A of the Children (Criminal Proceedings) Act 1987, the publication of the identity of the complainant, PS, or any information that identifies her, is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 November 2020

Before:

O’Rourke SC DCJ

File Number(s):

2018/00102533

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant, GS, for leave to appeal was charged on an indictment that contained one count alleging that he had sexual intercourse with the victim, PS, without her consent and knowing she did not consent contrary to s 61I of the Crimes Act 1900 (NSW). On 9 June 2020, GS was arraigned before her Honour Judge O’Rourke SC sitting without a jury. He pleaded not guilty. On 16 June 2020, her Honour found the Applicant guilty and published reasons for her verdict. He was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 4 months commencing 29 May 2019. His non-parole period expired on 28 September 2021 and he was released to parole on that day. He filed his appeal after his release.

The charge against the Applicant arose out of his attendance at PS’s family’s property at Taylors Flat in February 2010. The Crown alleged that the Applicant drove from interstate and visited those members of PS’s family who lived there for approximately two weeks. The…

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 GS v The The King

Details

AGLC: GS v The The King [2022] NSWCCA 225
Case: [2022] NSWCCA 225
Decision Date: 19 October 2022

CaseChat Overview and Summary

The applicant, GS, was convicted by a judge sitting alone in the County Court of Victoria of one count of sexual assault against a child under 16 years of age. GS appealed against the conviction to the Court of Appeal, arguing that the verdict was unreasonable and not supported by the evidence, particularly given the context of systemic sexual abuse within the family. The Court of Appeal was tasked with determining whether the trial judge's decision to convict GS was appropriate, considering the nature of the evidence and the systemic abuse that had occurred within the family.

The court considered the evidence of the victim, who was one of several family members subject to sexual abuse by different family members. It examined whether the trial judge had misdirected himself in his approach to the evidence and whether the inconsistencies in the victim's account and the delay in reporting the abuse undermined the reliability of her testimony. The Court of Appeal held that the trial judge had correctly assessed the evidence and that the inconsistencies and delay did not render the conviction unreasonable. The court found that the trial judge had appropriately evaluated the credibility of the victim's evidence and the context of the abuse, and had reasonably concluded that GS was guilty of the offence.

Having considered all grounds of appeal, the Court of Appeal dismissed the appeal. The conviction of GS for sexual assault was upheld, and the original sentence imposed by the trial judge remained in place. The court emphasised the importance of considering the broader context of systemic abuse when assessing the credibility of victims in such cases, while also recognising the need to carefully evaluate the specific evidence in relation to the accused.

Orders