Medium Neutral Citation: Harper v R [2022] NSWCCA 211
Hearing dates: 27 May 2022
Decision date: 30 September 2022
Before: Bell CJ at [1];
Button J at [2];
N Adams J at [179]
Decision:
(1) Leave to appeal against conviction and sentence granted.
(2) Appeal against conviction dismissed.
(3) Appeal against sentence dismissed.

Catchwords:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Applicant found guilty by jury of two counts of adult sexual assault – Applicant acquitted by jury of multiple counts of same offending – Where Crown case was that two conviction counts were supported by contemporaneous complaint material in the form of text messages – Where applicant contends the jury must have misused the evidence of text messages – Where appeal court should not attempt to parse jury findings in determining unreasonable verdict ground – Where text messages sent by complainant to applicant were powerful contemporaneous complaint suggestive of adult sexual assault
CRIME – Appeals – Appeal against conviction – Where applicant convicted of multiple counts of sexual and physical violence – Summing-up of trial judge – Where trial judge gave partial Liberato direction – Where direction did not speak of complete rejection of evidence of applicant – Where primary fact in contention was issue of consent – Where applicant gave sworn evidence in his defence contradicting evidence of complainant on two counts – Where applicant also gave sworn evidence admitting two offences – Where Crown relied on evidence of applicant in that regard – Where defence counsel at trial explicitly satisfied with partial Liberato direction – Where Rule 4.15 engaged – Where no miscarriage of justice
CRIME – Appeals – Appeal against conviction – Final address of Crown prosecutor – Summing-up of trial judge – Where final address of Crown prosecutor referred to asserted lies and unusual behaviour of applicant – Where vast majority of final address of Crown prosecutor did not feature consciousness of guilt reasoning – Where one submission of Crown prosecutor should, on analysis, be characterised as consciousness of guilt reasoning – Where applicant contends Edwards direction should have been given to jury –Where defence counsel at trial did not request Edwards direction – Where no miscarriage of justice
CRIME – Appeals – Appeal against sentence – Manifest excess – Where applicant submitted that indicative sentences for non-sexual assault offences were manifestly excessive – Where jury verdicts regarding previously committed sexual assaults meant that applicant could not rely on prior good character –Where aggregate sentence imposed for four offences was arguably lenient – Where no manifest excess established

Legislation Cited:
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
Dansiev The Queen [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Edwardsv The Queen (1993) 178 CLR 193; [1993] HCA 63
GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
Haile v R [2022] NSWCCA 71
Kassab

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 Harper v R

Details

AGLC: Harper v R [2022] NSWCCA 211
Case: [2022] NSWCCA 211
Decision Date: 30 September 2022

CaseChat Overview and Summary

In Harper v R, the respondent, Harper, appealed against his conviction and sentence on multiple counts of sexual and physical assault. The matter was heard in the High Court of Australia. Harper had been convicted by a jury of two counts of adult sexual assault, while being acquitted on multiple other counts of the same offending. The appeal centred on the contention that the jury's verdict was unreasonable and that the sentence imposed was manifestly excessive.

The primary legal issue was whether the jury's verdict was unreasonable, particularly in light of the contemporaneous text messages sent by the complainant to Harper. Harper argued that the jury must have misused the evidence of the text messages. The court held that it should not attempt to parse the jury's findings when determining the unreasonableness of a verdict. The court found that the text messages were powerful evidence that suggested adult sexual assault. Additionally, the court examined whether the summing-up of the trial judge constituted a miscarriage of justice. The court found that the trial judge's summing-up, which included a partial Liberato direction, was not erroneous, as the defence counsel at trial had explicitly stated satisfaction with it.

The court also considered whether the final address of the Crown prosecutor or the summing-up of the trial judge amounted to a miscarriage of justice. The court found that the final address did not predominantly rely on consciousness of guilt reasoning and that no miscarriage of justice occurred. Lastly, the court reviewed the sentence imposed, finding that it was not manifestly excessive given the aggregate nature of the sentence for multiple offences, including the sexual assaults.

The High Court dismissed the appeal against conviction and sentence, upholding the jury's verdict and the sentence imposed.

Orders