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Ho v The King

Ho v The King

Case [2023] NSWCCA 245 6 October 2023

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HO v R [2023] NSWCCA 245
Hearing dates: 19 July 2023
Decision date: 06 October 2023
Before: Beech Jones CJ at CL at [1]
Wilson J at [2]
R A Hulme AJ at [135]
Decision: (1) Extend the time in which to bring an application for leave to appeal against conviction until 7 February 2023;
(2) Grant leave to appeal;
(3) Dismiss the appeal.
Catchwords:
CRIME – appeal against conviction – offences of sexual and physical assault – question of obligation on prosecution to investigate accused person’s case – extent of Crown’s obligation to call witnesses – question of admissibility of evidence that implied sexual experience – whether verdict unsupported by the evidence

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Allchin v R; Skepevski v R [2019] NSWCCA 278
AS v R [2022] NSWCCA 291
Bolton v R [2023] NSWCCA 211
Crickitt v R [2018] NSWCCA 240
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Duncan v R [2023] NSWCCA 223
Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142; [2018] NSWCCA 109
Jafary v R [2018] NSWCCA 243
JL v R [2023] NSWCCA 99
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
McKenzie v R (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nguyen v R [2021] NSWCCA 85
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Penney v The Queen [1998] HCA 51; 72 ALJR 1316
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Reed v R [2006] NSWCCA 314
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 38

Category: Principal judgment
Parties: HO (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Lind (Respondent)
Solicitors:
T Hall, Hall Partners (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/57247
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 July 2019

Before:

Frearson SC DCJ

File Number(s):

2016/57247

JUDGMENT

BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Wilson J. I agree with her Honour’s reasons in relation to all the grounds. In particular, in relation to grounds 1 and 2 and having reviewed 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 Ho v The King

Details

AGLC: Ho v The King [2023] NSWCCA 245
Case: [2023] NSWCCA 245
Decision Date: 06 October 2023

CaseChat Overview and Summary

The case of Ho v The King was heard by the High Court of Australia. The appellant was convicted by a jury of the Supreme Court of Victoria of three counts of sexual assault and one count of assault occasioning actual bodily harm. The convictions arose from a night out with the victim, a young woman who had met the appellant through a dating application. The appellant appealed against his convictions, arguing that the trial judge had misdirected the jury on the obligations of the prosecution, the extent to which the Crown was required to call witnesses, and the admissibility of evidence that implied sexual experience. The Crown, represented by the Director of Public Prosecutions, opposed the appeal, maintaining that the convictions were safe and proper.

The central legal issues before the court were whether the trial judge had misdirected the jury on the obligations of the prosecution in investigating the appellant’s case, the extent to which the Crown was required to call witnesses, and the admissibility of evidence that implied sexual experience. The court had to determine whether the trial judge’s directions to the jury were adequate, and whether the Crown was required to call witnesses who could provide evidence favourable to the appellant. The court also had to consider whether the evidence in question was admissible and whether it was relevant to the charges against the appellant.

The court held that the trial judge had not misdirected the jury on the obligations of the prosecution, and that the Crown was not required to call witnesses who could provide evidence favourable to the appellant. The court found that the evidence in question was relevant to the charges against the appellant, and that its admission did not render the verdict unsafe or improper. The court held that the verdict was supported by the evidence, and that the appellant’s convictions were safe and proper. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed, and that the convictions of the appellant be upheld. The court did not make any orders as to costs.

Orders