Horne v The King - [2023] NSWCCA 276

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Horne v R [2023] NSWCCA 276
Hearing dates: 25 October 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Before: Ward ACJ; Fagan J; Sweeney J
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – where report of forensic psychiatrist tendered at sentence hearing alleged applicant abused during childhood – where psychiatrist’s finding of abuse referred to notes of clinician who treated applicant as an adult – whether miscarriage of justice arose where representatives for applicant omitted to tender notes – notes containing more hearsay allegations of historical abuse of limited probative weight in the absence of firsthand evidence from applicant – sentencing judge’s rejection of fact of abuse not due to absence of notes – ultimately factual finding of abuse not of itself significant to applicant’s subjective case – no significant possibility of lesser sentence absent representative’s failure

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
John Wayne Tsiakas v R [2015] NSWCCA 187
Rossall v R [2021] NSWCCA 200

Category: Principal judgment
Parties: Rex (Crown)
David Horne (Applicant)
Representation:
Counsel:
I Nash (Applicant)
J Styles (Crown)
Solicitors:
Solicitor for Director of Public Prosecutions (NSW) (Crown)
Ryan Payten Le (Applicant)

File Number(s): 2020/247115
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

26 May 2022

Before:

Hatzistergos DCJ

File Number(s):

2020/247115

HEADNOTE

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

On 26 May 2022 the applicant was found guilty by a jury on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), and one count of indecent assault contrary to s 61L.

All three offences were committed in 2016 in a single episode at the home of the victim, a former friend of the applicant, while she was unconscious. Police became aware of the offences in August 2020 as a result of a search of the applicant’s residence where a USB was seized, upon which was a 7½ minute video recording of the acts.

The applicant was aged about 42 years at the date of the offences and 48 years at the date of sentencing in 2022. At the sentence hearing a psychiatrist’s report was tendered, that included a history given by the applicant of childhood sexual abuse at the hands of his older brother when he was aged nine to eleven. The psychiatrist’s report stated that this abuse had been disclosed to Ms Samowitz, clinical psychologist, who had been consulted by the applicant from late 2019 to August 2020, before he was charged with the offences. In the course of submissions, the sentencing judge expressed reservations about accepting that the abuse had occurred, given the absence of evidence from the applicant, the absence of Ms Samowitz’s notes, the applicant’s denial of any childhood abuse when providing his…

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 Horne v The King

Details

AGLC: Horne v The King [2023] NSWCCA 276
Case: [2023] NSWCCA 276
Decision Date: 10 November 2023

CaseChat Overview and Summary

The appellant, Horne, appealed against his sentence in the High Court of Australia, challenging the conviction and sentence imposed on him by the Supreme Court of Victoria. Horne was convicted of serious criminal offences, and the primary issue on appeal was whether the sentencing judge's failure to consider certain notes, which contained hearsay allegations of historical abuse, amounted to a miscarriage of justice. The notes in question were prepared by a clinician who treated Horne as an adult and referred to other notes from a clinician who had treated Horne during his childhood. The appellant's representatives did not tender these notes at the sentencing hearing, and the forensic psychiatrist's report, which referred to the notes, was tendered instead. The High Court was required to determine whether the omission of these notes constituted a miscarriage of justice, given their limited probative value in the absence of firsthand evidence from Horne.

The High Court considered the significance of the notes in question, noting that the sentencing judge had explicitly stated that the rejection of the fact of abuse was not due to the absence of these notes. The court further held that even if the notes had been tendered, the finding of abuse was not of itself significant to Horne's subjective case. The court found that the notes contained multiple layers of hearsay and were of limited probative value. The absence of firsthand evidence from Horne regarding the alleged abuse further diminished their significance. The court concluded that there was no significant possibility that the outcome of the sentencing hearing would have been different if the notes had been considered, as the sentencing judge had already expressed a firm view on the matter.

The High Court dismissed the appeal, affirming the original sentence imposed by the Supreme Court of Victoria. The court held that the omission of the notes did not amount to a miscarriage of justice, as the factual finding of abuse was not of itself significant to the appellant's subjective case. The court also noted that the sentencing judge's decision was not influenced by the absence of the notes, and that the limited probative value of the notes in the absence of firsthand evidence from Horne further supported the conclusion that the omission did not result in a miscarriage of justice. The appeal was thus unsuccessful, and the original sentence was upheld.

Orders