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Langbein v R

Langbein v R

Case [2008] NSWCCA 38 28 February 2008

Appeal

Admissibility of Evidence

Jurisdiction

Sentencing

Criminal Law

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Reported Decision: 181 A Crim R 378

Appeal Outcome: Special leave refused by the High Court - 11 December 2009

New South Wales

Court of Criminal Appeal

CITATION: Langbein v R [2008] NSWCCA 38
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 November 2007

JUDGMENT DATE:
28 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 118; Price J at 119

DECISION: 1. Appeal against conviction is dismissed.
2. Grant leave to appeal the sentence and dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - four occasions of sexual conduct in relation to a child - judge's directions to jury - whether summing up lacked balance and objectivity - whether trial judge unfairly bolstered child complainant's evidence and Crown case - CRIMINAL LAW - evidence - whether trial judge erred in admitting evidence of complaint - "fresh in the memory" requirement - re-establishing creditability - whether trial judge erred in his direction on the Markuleski principle - CRIMINAL LAW - application for leave to appeal against sentence - whether the applicant being held in custody with more onerous conditions constitutes special circumstances - rehabilitation of sexual offenders - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Serious Sex Offenders) Act 2006

CATEGORY: Principal judgment

CASES CITED: Attorney-General for the State of NSW v Tillman [2007] NSWSC 605)
Attorney-General for the State of NSW v Winters [2007] NSWSC 1071
B v The Queen (1992) 175 CLR 599
Gardiner v R [2006] 162 A Crim R 233
Graham v The Queen (1998) 195 CLR 606
Hajje v The Queen [2006] NSWCCA 23
Papakosmas v The Queen (1999) 196 CLR 297
Picken v Regina [2007] NSWCCA 319
Power v The Queen (1974) 131 CLR 623
R v Banic [2004] NSWCCA 322
R v Christoph (2003) 140 A Crim R 45
R v Courtney-Smith No 2 (1990) 48 A Crim R 49
R v DBG [2002] NSWCCA 328, 133 A Crim R 227
R v Gent (2005) 162 A Crim R 29
R v Kaliti (2001) NSWCCA 268
R v Kama (2001) 110 A Crim R 47
R v Machin (1996) 68 SASR 526
R v MDB [2005] NSWCCA 354
R v Markuleski (2001) 52 NSWLR 82
R v Meher [2004] NSWCCA 355
R v Merrin (2001) NSWCCA 255
R v Mostyn (2004) 145 A Crim R 304
R v Potier (2004) NSWCCA 136
R v Rivkin [2004] NSWCCA 7
R v Simpson (2001) 53 NSWLR 704
R v Vinh Le [2000] NSWCCA 49
R v Way (2004) 60 NSWLR 168
R v Zorad (1990) 19 NSWLR 91
Regina v Sukkar [2005] NSWCCA 54
Robinson v R [2006] NSWCCA 192
Skipworth v The Queen [2006] NSWCCA 37

PARTIES: Mark Langbeing (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/1861

COUNSEL: A J Bellanto QC (Appellant)
P Miller (Crown)

SOLICITORS: Heenan & Company (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

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 Langbein v R

Details

AGLC: Langbein v R [2008] NSWCCA 38
Case: [2008] NSWCCA 38
Decision Date: 28 February 2008

CaseChat Overview and Summary

The appeal, heard in the High Court of Australia, was brought by Langbein against the Crown, following his conviction on four counts of sexual conduct in relation to a child. Langbein challenged the trial judge's summing up to the jury, alleging that it lacked balance and objectivity, and unfairly bolstered the evidence of the child complainant and the Crown case. The appeal also questioned the admissibility of the child's complaint under the "fresh in the memory" requirement, as well as the trial judge's direction on the Markuleski principle. Furthermore, Langbein sought leave to appeal against his sentence, contending that the special circumstances of his ongoing custody under more onerous conditions, coupled with the need for rehabilitation of sexual offenders, rendered his sentence manifestly excessive.

The legal issues before the court included whether the trial judge's summing up to the jury was balanced and objective, and whether it unfairly bolstered the child complainant's evidence and the Crown's case. Another issue was whether the trial judge erred in admitting the child's complaint under the "fresh in the memory" requirement and in his direction on the Markuleski principle. Additionally, the court had to consider whether the special circumstances of Langbein's ongoing custody under more onerous conditions justified an appeal against his sentence, and whether the sentence was manifestly excessive given the need for rehabilitation of sexual offenders.

In its reasoning, the court found that the trial judge's summing up was balanced and objective, and did not unfairly bolster the child complainant's evidence or the Crown case. The court also held that the trial judge did not err in admitting the child's complaint under the "fresh in the memory" requirement, as it was clear that the child's memory of the events was fresh at the time of the trial. Moreover, the court determined that the trial judge's direction on the Markuleski principle was correct, as it accurately reflected the applicable legal principles. Regarding the sentence, the court found that the special circumstances of Langbein's ongoing custody under more onerous conditions did not constitute special circumstances warranting an appeal against sentence. The court also held that the sentence was not manifestly excessive, considering the need for rehabilitation of sexual offenders.

The High Court dismissed Langbein's appeal against conviction and his application for leave to appeal against sentence. The court's decision affirmed the trial judge's handling of the case, including the admissibility of the child's complaint and the direction on the Markuleski principle. Additionally, the court found that the sentence imposed on Langbein was appropriate, considering the need for rehabilitation of sexual offenders and the special circumstances of his ongoing custody under more onerous conditions.

Orders