LB v The Queen - [2014] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LB v R [2014] NSWCCA 295
Hearing dates: 8 August 2014
Decision date: 05 December 2014
Before: Simpson J at [1]; Adams J at [65]; R A Hulme J at [66]
Decision:
Appeal against conviction dismissed.

Catchwords:
APPEAL - appeal against conviction - applicant convicted of attempted sexual intercourse without consent with a person under the age of 10 years - whether verdict unreasonable or insupportable having regard to evidence - Whitehorn v The Queen [1983] HCA 42 - Douglass v The Queen [2012] HCA 34 - complainant's evidence given by video - recordings of interview with police - whether manner of giving evidence undermined the principles of fair trial - whether probative value of the evidence outweighed by prejudicial effect - Evidence Act 1995 (NSW), s 137
CRIMINAL LAW - appeal - admissibility of evidence - whether probative value of evidence outweighed by danger of unfair prejudice - credibility of witness
Legislation Cited: Criminal Appeal Rules
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521
Douglass v The Queen [2012] HCA 34; 290 ALR 699
M v The Queen [1994] HCA 63; 181 CLR 487
R v Prasad (1979) 23 SASR 101
SKA v The Queen [2011] HCA 13; 243 CLR 400
Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Category: Principal judgment
Parties: LB (Appellant)
Regina (Respondent)
Representation: Counsel:
D Dalton SC (Appellant)
N Adams (Respondent)
Solicitors:
S E O'Connor - Legal Aid NSW (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/402740
Publication restriction: Non-publication of any information or material that may lead to the identification of certain children (s 15A Children (Criminal Proceedings) Act 1987 (NSW))
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-07-12 00:00:00

Before:

Haesler DCJ

File Number(s):

2011/402740

Judgment

SIMPSON J: On 5 May 2013 the appellant was arraigned in the District Court at Griffith on an indictment that contained a single count of sexual intercourse without consent with a person under the age of 10 years, and an alternative count of attempted sexual intercourse without consent with a person under the age of 10 years. The offence was alleged to have been committed between 15 September 2008 and 15 October 2008. After a 5 day trial, the jury returned a verdict of not guilty on the principal count, but guilty on the alternative count. On 12 July 2013 Haesler DCJ sentenced the appellant to imprisonment for 2 years commencing on 9 May 2013, with a non-parole period of 6 months.

The appellant appeals against the conviction. He has not sought leave to appeal against the sentence.

Prior to trial, application was made on the appellant's behalf, pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), for an order that the appellant be tried by judge alone. That was opposed by 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 LB v The Queen

Details

AGLC: LB v The Queen [2014] NSWCCA 295
Case: [2014] NSWCCA 295
Decision Date: 05 December 2014

CaseChat Overview and Summary

The appellant, LB, appealed against his conviction for attempted sexual intercourse without consent with a person under the age of 10 years. The case was heard by the High Court of Australia. The primary issue was whether the verdict was unreasonable or insupportable given the evidence presented, in light of relevant High Court decisions such as Whitehorn v The Queen and Douglass v The Queen. Additionally, the court examined whether the manner in which the complainant's evidence was given, specifically through video recordings of her police interview, undermined the principles of a fair trial. The court also assessed whether the probative value of the evidence was outweighed by the potential prejudicial effect, as per section 137 of the Evidence Act 1995 (NSW).

The court considered the arguments regarding the admissibility of the evidence, focusing on whether its probative value was outweighed by the danger of unfair prejudice, as well as the credibility of the witness. The appellant argued that the complainant's video-recorded evidence was prejudicial and undermined her credibility, which in turn affected the reliability of the evidence. The court examined the principles of a fair trial and the relevance and admissibility of evidence under the Evidence Act. It noted the importance of ensuring that the probative value of evidence is not overshadowed by its potential to cause unfair prejudice, particularly in sensitive cases involving child witnesses.

In determining the appeal, the court found that the evidence presented was sufficient to support the conviction and that the manner in which the complainant's evidence was given did not undermine the principles of a fair trial. The probative value of the evidence was deemed to outweigh any prejudicial effect. Consequently, the court upheld the conviction, affirming that the verdict was neither unreasonable nor insupportable given the evidence. The appeal was dismissed, and the original conviction stood.

Orders