IW v R

Case [2019] NSWCCA 311 20 December 2019

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: IW v R [2019] NSWCCA 311
Hearing dates: 9 September 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Bathurst CJ at [1]
Fullerton J at [3]
Bellew J at [9]
Decision:
(1) The appeal against conviction is allowed.

(2) The convictions recorded against the appellant are quashed.

(3) The sentences imposed upon the appellant are quashed.
(4) Verdicts of acquittal are entered in respect of each of counts 1 and 2.
Catchwords:
CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant

CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint

CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice
CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not…

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 IW v R

Details

AGLC: IW v The Queen [2019] NSWCCA 311
Case: [2019] NSWCCA 311
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of IW v R involved the appellant, IW, who stood trial on charges of sexually assaulting a child in his care. The defence relied heavily on IW's good character, yet the Crown's cross-examination breached statutory provisions and included impermissible matters, leading to an unfair trial. Additionally, the trial judge's summing up contained errors, including mischaracterising certain evidence and providing incorrect directions regarding the complainant's testimony and IW's good character. During jury deliberations, the judge failed to provide essential directions when replaying excerpts of the complainant's evidence, omitting to warn the jury about the need to approach this repetition with caution and to consider all evidence impartially.

The legal issues before the court encompassed the admissibility of credibility evidence in relation to IW's character, the propriety of the Crown's cross-examination, the accuracy of the trial judge's summing up, and the adequacy of the directions given during the jury's deliberations. The court had to determine whether these procedural errors and misdirections constituted a miscarriage of justice, affecting the fairness of the trial and the reliability of the verdicts.

The court found that the Crown's cross-examination was entirely impermissible and unfair, and the trial judge's summing up and directions to the jury were erroneous and prejudicial. The omissions in directing the jury during their deliberations were particularly significant, as they failed to remind the jury of other critical evidence and the necessity to consider all evidence in the case. These cumulative errors warranted a conclusion that the trial process was fundamentally flawed and that the verdicts were unreasonable. Consequently, the convictions were quashed, and verdicts of acquittal were entered in their place.

The court's final orders included the quashing of the convictions and the entry of verdicts of acquittal for IW on both counts of sexual assault. This decision underscores the importance of procedural integrity in criminal trials and the significant impact of errors on the fairness and reliability of the verdicts.

Orders