JL v R

Case [2023] NSWCCA 99 1 May 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JL v R [2023] NSWCCA 99
Hearing dates: 14 April 2023
Decision date: 01 May 2023
Before: Adamson JA at [1]; Ierace J at [136] Sweeney J at [137]
Decision:
(1)   Extend the time for leave to appeal.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — child sex offences — unreasonable verdict — whether open to jury to believe complainant — inconsistency in evidence — delay in reporting
CRIME — Appeals — Appeal against conviction — whether trial judge erred in form of Liberato direction
CRIME — Appeals — Appeal against sentence — applicant previously sentenced in Local Court for offences against complainant — whether trial judge erred in application of totality principle

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), s 293A
Evidence Act 1995 (NSW), s 191
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Crickitt v R [2018] NSWCCA 240
Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Dang v R [2014] NSWCCA 47
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Haak v R [2022] NSWCCA 28
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Reed v R [2006] NSWCCA 314
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Wu v R [2011] NSWCCA 102; 211 A Crim R 88
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: JL (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Lewer / D Mulligan (Applicant)
S Lind (Respondent)
Solicitors:
Mitchell & Co Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/122616
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 November 2019

Before:

North DCJ

File Number(s):

2018/122616

HEADNOTE

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

JL (the applicant) sought an extension of time for leave to appeal against his convictions of four child sexual offences against a male child (the complainant) following a trial by jury over which North DCJ presided. The applicant also sought leave to…

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 JL v R

Details

AGLC: JL v R [2023] NSWCCA 99
Case: [2023] NSWCCA 99
Decision Date: 01 May 2023

CaseChat Overview and Summary

The appellant, JL, appealed against his convictions for child sex offences, as well as the sentences imposed. The appeal was heard by the NSW Court of Criminal Appeal. The appellant was found guilty of multiple counts of sexual assault against a child under the age of 10. The complainant did not testify at trial, but there was a video recording of a police interview with the complainant, which was admitted as evidence. The appeal raised several issues, including the reasonableness of the verdict, the form of the Liberato direction given by the trial judge, and the appropriateness of the sentences imposed.

The court considered whether the jury was open to believing the complainant's account, despite inconsistencies in her evidence and the delay in reporting the offences. The court noted that the jury was entitled to consider the video recording of the police interview, as well as other evidence, in determining the credibility of the complainant. The court held that the jury was open to believing the complainant's account, and that the verdict was not unreasonable. The court also considered whether the trial judge erred in the form of the Liberato direction, which was a direction given to the jury to consider the credibility of a complainant who had delayed in reporting the offences. The court held that there was no error in the form of the Liberato direction, and that the trial judge had properly directed the jury on the relevant considerations.

The court further considered the sentences imposed by the trial judge, which were a combination of imprisonment and community service orders. The appellant had previously been sentenced in the Local Court for offences against the same complainant. The court held that the trial judge had properly considered the totality principle in imposing the sentences, and that the sentences were appropriate in the circumstances. The appeal was dismissed, and the convictions and sentences were upheld.

The final orders of the court were that the appeal against conviction and sentence be dismissed, and that the convictions and sentences imposed by the trial judge be upheld. The appellant was required to serve the sentences imposed by the trial judge, which involved a combination of imprisonment and community service orders. The court noted that the sentences reflected the seriousness of the offences committed by the appellant, and the need to protect the community from further offending. The court also noted that the appellant had a previous conviction for offences against the same complainant, which was a relevant consideration in imposing the sentences.

Orders