Hugo (a pseudonym) v The Queen - [2021] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hugo (a pseudonym) v R [2021] NSWCCA 99
Hearing dates: 1 March 2021
Date of orders: 17 May 2021
Decision date: 17 May 2021
Before: Gleeson JA at [1]
Harrison J at [81]
Bellew J at [82]
Decision:
(1)   Grant leave to appeal against conviction.
(2)   Appeal allowed.
(3)   Quash the conviction of the appellant on count 1 and set aside the sentence imposed in the District Court on 8 March 2019.
(4)   In lieu, direct a verdict of acquittal be entered on count 1.

Catchwords:
CRIMINAL LAW – appeal – leave to appeal against conviction – question of mixed fact and law – where applicant convicted of one sexual offence against a child and acquitted of multiple similar offences against that child and another – where guilty verdict depended on complainant’s credibility – whether guilty verdict unreasonable having regard to inconsistency with acquittals on other counts – whether acquittals necessarily indicate the jury had a doubt about complainant’s credibility – Criminal Appeal Act 1912 (NSW), s 6(1)

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M(2), 578A
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases Cited:
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Roos [2019] NSWCCA 67
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category: Principal judgment
Parties: Hugo (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Evers (Applicant)
C Young (Respondent)
Solicitors:
Katsoolis & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/383183
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of, or any matter which could identify the complainants, is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 February 2019; 1 March 2019

Before:

Norrish QC DCJ

File Number(s):

2016/383183

Judgment

GLEESON JA: This is an application for leave to appeal against conviction. The applicant, who has been convicted of one sexual offence against a child, and was acquitted of multiple other similar offences against that child and a second child, contends that the guilty verdict was unreasonable having regard to its inconsistency with the acquittals on the other counts relating to the first child.
The complainants, S and K, are the applicant’s nieces. At the time of the alleged offending, S was aged between 8 and 10 years and K was aged between 6 and 13 years. The applicant cannot be named by reason of s 578A of the Crimes Act 1900 (NSW); “Hugo” is a pseudonym.
The charges relating to S involved five counts of aggravated indecent assault (counts 1, 2, 5, 7 and 9) and two…

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 Hugo (a pseudonym) v The Queen

Details

AGLC: Hugo (a pseudonym) v The Queen [2021] NSWCCA 99
Case: [2021] NSWCCA 99
Decision Date: 17 May 2021

CaseChat Overview and Summary

The matter of Hugo (a pseudonym) v The Queen involved an appellant, Hugo, who sought leave to appeal against his conviction for one count of sexual offences against a child. The respondent, The Queen, opposed the application. Hugo was convicted of one count of sexual assault against a child, but acquitted on multiple similar offences involving the same child and another child. The dispute centred around the credibility of the complainant and whether the guilty verdict was unreasonable given the acquittals on other counts.

The legal issue before the court was whether the guilty verdict was unreasonable in light of the acquittals, and whether the acquittals necessarily indicated the jury had a doubt about the complainant’s credibility. The court had to determine whether the acquittals on other counts rendered the guilty verdict unreasonable, as well as whether the acquittals necessarily reflected a doubt about the complainant’s credibility. These questions required the court to consider both factual and legal aspects of the case.

The court held that the acquittals did not necessarily indicate the jury had a doubt about the complainant’s credibility. The court found that it was open to the jury to believe the complainant in relation to the offence for which Hugo was convicted, even if they had doubts about the other offences. The court concluded that the acquittals did not render the guilty verdict unreasonable, and thus, the application for leave to appeal was dismissed. The court's reasoning was based on the principle that the jury's decision on each count was independent, and their belief in the complainant's credibility regarding one offence did not preclude doubts about other offences.

Orders