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Hogan (a pseudonym) v The Queen

Hogan (a pseudonym) v The Queen

Case [2019] NSWCCA 125 14 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hogan (a pseudonym) v R [2019] NSWCCA 125
Hearing dates: 16 November 2018
Decision date: 14 June 2019
Before: Simpson AJA at [1]; Johnson J at [64]; N Adams J at [65]
Decision:
(1) To the extent necessary, grant leave to the appellant to appeal against the conviction on the basis of ground 2;
(2) Dismiss the appeal.
Catchwords:
CRIME – conviction appeal – where permanent stay of proceedings denied by trial judge – where appellant accused of historical child sexual offences – where complainant made allegations shortly after the offending – where appellant interviewed by police and cross-examined at committal proceedings – where complainant chose not to proceed with prosecution but later reactivated complaints – where contemporaneous material lost – whether trial judge erred in dismissing application for stay
CRIME – conviction appeal – mixed verdicts – whether convictions on two counts unreasonable and not supported by evidence
Legislation Cited: Crimes Act 1900 (NSW), ss 66C, 66D, 404A
Criminal Appeal Act 1912 (NSW), s 5(1)
Criminal Procedure Act 1986 (NSW), s 31
Cases Cited: Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jafary v R [2018] NSWCCA 243
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
R v RD [2016] NSWCCA 84
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category: Principal judgment
Parties: Richard Hogan (a pseudonym) (Appellant)
Regina (Respondent)
Representation:
Counsel:
C O’Donnell SC (Appellant)
E Balodis (Respondent)
Solicitors:
Tully & Chiper Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/150430
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2017

Before:

McClintock DCJ

File Number(s):

2016/150430

HEADNOTE

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

In August 2017, the appellant was charged in the District Court with four child sexual assault offences against ss 66C and 66D of the Crimes Act 1900 (NSW). The relevant conduct occurred between 1989 and 1991, and was occasioned against his now-adult daughter. In 1992, the complainant made allegations that the appellant had committed sexual offences against her. She was medically examined and gave statements to police. The appellant…

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 Hogan (a pseudonym) v The Queen

Details

AGLC: Hogan (a pseudonym) v The Queen [2019] NSWCCA 125
Case: [2019] NSWCCA 125
Decision Date: 14 June 2019

CaseChat Overview and Summary

The appeal was brought by the defendant, Hogan, against a conviction made by a trial judge in the Supreme Court of Victoria. Hogan was charged with historical child sexual offences. The complainant had originally made allegations shortly after the alleged offences, and Hogan was interviewed by police and cross-examined at committal proceedings. However, the complainant chose not to proceed with the prosecution at that time but later reactivated the complaints. Due to the passage of time, some contemporaneous material was lost. Hogan applied for a stay of proceedings, which the trial judge denied. Hogan appealed against both the denial of the stay of proceedings and against the mixed verdicts of the trial judge.

The legal issues before the court were whether the trial judge erred in denying the application for a stay of proceedings, and whether the convictions on two counts were unreasonable and not supported by the evidence. The court noted that the trial judge had considered the appropriate factors in deciding whether to grant a stay of proceedings, including the passage of time, the loss of evidence, and the reliability of the complainant's evidence. The court found that the trial judge had not erred in denying the application for a stay of proceedings. The court also considered the mixed verdicts and found that the convictions on two counts were supported by the evidence, despite the passage of time and the loss of evidence.

The appeal was dismissed. The court found that the trial judge had not erred in denying the application for a stay of proceedings, and that the convictions on two counts were supported by the evidence. The court noted that the complainant's evidence, although affected by the passage of time and the loss of evidence, was still reliable and consistent. The court also found that the trial judge had properly directed the jury on the evaluation of the complainant's evidence and the assessment of the reliability of that evidence. The appeal was dismissed, and the convictions and sentences of the trial judge were upheld.

Orders