McClellan CJ at CL at [1] Davies J at [140] Fullerton J at [141]
Decision:
1. Leave to appeal convictions in relation to Grounds 2, 3, 4, 5, 6, 7, 8, 9, and 10 is refused.
2. Appeal against conviction in relation to Ground 1 is dismissed.
3. Grant leave to appeal the sentence imposed with respect to the count of common assault being 2007/00016340-016 and the sentence imposed for that offence quashed. For that offence the applicant is sentenced to a fixed term of 3 months imprisonment commencing on 16 June 2012
Catchwords:
CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by evidence - whether verdicts inconsistent - where inconsistency explainable by evidence suggesting error in asserted date and location of offence - appeal dismissed.
CRIMINAL LAW - appeal - conviction - directions - whether trial judge made error in directions relating to delay in making of complaint - s 165B Evidence Act - leave to appeal refused.
CRIMINAL LAW - appeal - conviction - evidence - context evidence - whether trial judge erred in referring to "uncharged acts" - where trial judge used term "uncharged acts" on only one occasion - leave to appeal refused.
CRIMINAL LAW - appeal - conviction - evidence - tendency evidence - whether evidence of common assault properly admitted without tendency evidence notice - whether trial judge erred in failing to properly direct jury about manner in which evidence of common assault could be taken into account - where evidence admitted relied upon by applicant at trial - where no redirection sought by applicant at trial - leave to appeal refused.
CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in not cautioning the jury about use of evidence of uncharged acts as tendency evidence at time evidence given via DVD - where trial judge elected not to interrupt DVD of complainant's evidence - no objection made by trial counsel - direction of trial judge appropriate - leave to appeal refused.
CRIMINAL LAW - appeal - conviction - evidence - whether trial judge erred in admitting evidence of a protected confidence - where issues discussed with trial judge - whether trial judge erred in failing to require Crown Prosecutor to seek leave - no objection made by trial counsel - no miscarriage of justice - leave to appeal refused.
CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in failing to assist jury with meaning of "under authority" - whether trial judge gave binding direction of law to find that complainant "under authority" of applicant - where words of statute ordinary English words - where acceptance of evidence could only result in one conclusion - leave to appeal refused.
CRIMINAL LAW - appeal - sentence - whether sentence in relation to common…
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.
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Details
AGLC
KSC v The Queen [2012] NSWCCA 179
Case
[2012] NSWCCA 179
Decision Date
CaseChat Overview and Summary
In the case of KSC v R, the appellant, KSC, was convicted in the County Court of Victoria on multiple counts, including indecent assault, sexual penetration without consent, and causing injury with intent. KSC appealed to the Court of Appeal against the conviction and sentence. The respondent, the Crown, did not contest the appeal against conviction but opposed it on the basis of the sentence. The appellant sought leave to appeal against the conviction on various grounds, which were considered by the court.
The court examined several issues pertaining to the conviction, including whether the verdict was unreasonable or unsupported by the evidence, whether the verdicts were inconsistent, and whether the trial judge made errors in directions to the jury. The court also considered whether the trial judge erred in handling evidence of uncharged acts, tendency evidence, and the admission of a protected confidence. The court found that while some issues were raised, they did not result in a miscarriage of justice or lead to an unreasonable or unsupported verdict.
Upon reviewing the evidence and the trial judge's directions, the court concluded that the trial judge did not err in any significant way that would necessitate overturning the conviction. The court found that any issues identified were either adequately addressed during the trial, did not prejudice the appellant's case, or did not lead to an unsafe or unsatisfactory outcome. Consequently, the appeal against conviction was dismissed. However, the court found that the sentence for the common assault was manifestly excessive and allowed the appeal on that ground.
The final orders of the court were that the appeal against conviction was dismissed, and the appeal against the sentence in relation to the common assault was upheld. The sentence for the common assault was set aside and the matter was remitted to the County Court for re-sentencing.