JV v R

Case [2017] NSWCCA 49 24 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JV v R [2017] NSWCCA 49
Hearing dates: 28 October 2016
Decision date: 24 March 2017
Before: Leeming JA at [1]
Fagan J at [2]
N Adams J at [8]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – conviction appeal – whether trial miscarried by reason of failure of applicant’s counsel to lead evidence of good character – where failure said to be an oversight – where complainant’s cousin complained of similar indecent assault by the applicant upon her – where Crown would have led evidence of that alleged offence to rebut good character evidence – failure to adduce good character explicable on that basis – no miscarriage of justice – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), s 306I
Evidence Act 1995 (NSW), ss 55, 97, 101, 112, 191
Cases Cited: Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356
Ahmu v R [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
ARS v R [2011] NSWCCA 266,
Clay v The Queen [2014] VSCA 269
De Silva v The Queen [2013] VSCA 339
GZ v The Queen [2015] ACTCA 11
Langelaar v R [2016] NSWCCA 143
Matthews v R [2013] NSWCCA 187
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9
Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
R v D (1996) 86 A Crim R 41
R v DBB [2012] QCA 96
R v Gust [1999] NSWCCA 265
Saw Wah v The Queen [2014] VSCA 7
Sharma v The Queen [2011] VSCA 356
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Vella v R [2015] NSWCCA 148
Category: Principal judgment
Parties: JV (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Carroll (Applicant)
Ms V Lydiard (Respondent)
Solicitors:
Mr A Aguirre (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/379167
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 March 2015

Before:

Wells SC DCJ

File Number(s):

2013/379167

Judgment

LEEMING JA: I agree with the reasons of N Adams J, and the orders her Honour proposes. I also agree with the reasons of Fagan J.
FAGAN J: I agree with N Adams J’s reasons and with the orders her Honour proposes. The appellant’s contention that the trial miscarried as a result of failure to adduce evidence of his good character is seen to be untenable when it is recognised his counsel made a sound forensic decision upon another matter which was quite inconsistent with putting character in issue.
Whenever the possibility of calling evidence of good character arises the first reflex of defence counsel is to ascertain what evidence the Crown…

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 JV v R

Details

AGLC: JV v The Queen [2017] NSWCCA 49
Case: [2017] NSWCCA 49
Decision Date: 24 March 2017

CaseChat Overview and Summary

The appeal was brought by the applicant against their conviction for indecent assault. The applicant argued that their counsel's failure to lead evidence of good character during the trial resulted in a miscarriage of justice. The applicant claimed that the oversight by their counsel was an unintentional mistake. Additionally, the complainant's cousin alleged that the applicant had indecently assaulted her, and the Crown intended to present evidence of this alleged offence to counter any evidence of good character. The court considered whether the failure to present good character evidence constituted a miscarriage of justice.

The court assessed whether the trial was compromised by the counsel's failure to present evidence of the applicant's good character. The court considered the potential impact of the complainant's cousin's allegation on the trial dynamics. The court determined that the counsel's oversight was understandable, given the Crown's intention to introduce evidence of the alleged indecent assault by the applicant on the complainant's cousin. The court concluded that the failure to present good character evidence did not result in a miscarriage of justice, as the evidence of the alleged indecent assault would have effectively countered any good character evidence.

The court held that the trial did not miscarry due to the counsel's failure to lead evidence of good character. The court found that the applicant's counsel's oversight was explicable given the Crown's intention to introduce evidence of the alleged indecent assault by the applicant on the complainant's cousin. The court ruled that the failure to present good character evidence did not result in a miscarriage of justice, as the evidence of the alleged indecent assault would have effectively countered any good character evidence. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders