Legal Research
Cases
Lever (a pseudonym) v The Queen

Lever (a pseudonym) v The Queen

Case [2018] NSWCCA 107 1 June 2018

Appeal

Breach of Contract

Aggravated & Exemplary Damages

Admissibility of Evidence

Sexual Assault Communications Privilege

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lever (a pseudonym) v R [2018] NSWCCA 107
Hearing dates: 9 March 2018
Decision date: 01 June 2018
Before: Basten JA at [1];
Johnson J at [80];
Campbell J at [82]
Decision:
(1) Refuse leave to rely upon grounds 3 and 4 pursuant to Criminal Appeal Rules, r 4.

(2)   Grant the applicant leave to appeal against convictions with respect to grounds 1 and 2.

(3)   Dismiss the appeal against convictions.
(4)   Refuse leave to appeal against sentence.
Catchwords:
CRIME – appeal against convictions – aggravated sexual assault against child under 16 years – whether conviction on eight counts inconsistent with acquittal on further counts – whether convictions unsafe or unsupported by the evidence

CRIMINAL PROCEDURE – jury directions –complainant’s evidence regarding multiple charged acts of aggravated sexual assault –evidence on each count as tendency and context evidence on others –IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 considered

EVIDENCE – significant forensic disadvantage caused by delay – no direction sought – whether absence of direction caused substantial miscarriage of justice – Evidence Act 1995 (NSW), s 165B
EVIDENCE – sexual assault proceeding – sexual assault communications privilege – complaint to general practitioner – applicant refused access to evidence produced under subpoena recording counselling communication between doctor and complainant – leave to lead evidence regarding surrounding circumstances of complaint refused –Criminal Procedure Act 1986 (NSW), ss 298, 299D
Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), s 61J
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 295, 296, 297, 298, 299D; Pt 5, Div 2, Ch 6
Evidence Act 1995 (NSW), ss 9, 165, 165A, 165B
Jury Directions Act 2015 (Vic), s 40; Pt 4, Div 5
Criminal Appeal Rules, r 4
Cases Cited: Binns v R [2017] NSWCCA 280
Director of Public Prosecutions v Martin [2016] VSCA 219
Greensill v The Queen (2012) 37 VR 257; [2012] VSCA 306
Groundstroem v R [2013] NSWCCA 237
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
MWL v The Queen [2016] NTCCA 6
Packard v The Queen [2018] VSCA 45
R v O’Brien [2017] NTSC 34
RMD v State of Western Australia [2017] WASCA 70
TO v R [2017] NSWCCA 12
Texts Cited: N Williams, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (LexisNexis, 2015) pp 946-947
Category: Principal judgment
Parties: K Lever (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Terracini SC/Mr B Green (Applicant)
Mr D Kell SC/Mr M Pulsford (Respondent)
Solicitors:
Russo & Partners (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/269213
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 October 2017

Before:

Traill DCJ

File Number(s):

2014/269213

Judgment

BASTEN JA: This matter involved an application for leave to appeal against both conviction and sentence. The offences involved aggravated sexual…

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 Lever (a pseudonym) v The Queen

Details

AGLC: Lever (a pseudonym) v The Queen [2018] NSWCCA 107
Case: [2018] NSWCCA 107
Decision Date: 01 June 2018

CaseChat Overview and Summary

Lever appealed against his convictions for eight counts of aggravated sexual assault against a child under 16 years. Lever was acquitted on a further six counts. The appeal was heard in the High Court of Australia. Lever contended that his convictions were inconsistent with his acquittal on other counts, and that they were unsafe and unsatisfactory. The Crown argued that the evidence supported the convictions. The Court was required to consider whether the convictions were inconsistent with the acquittals, whether they were supported by the evidence, whether the jury directions were appropriate, and whether the absence of a direction regarding the forensic disadvantage caused by delay resulted in a substantial miscarriage of justice.

The Court held that the convictions were not inconsistent with the acquittals, as the evidence supported a finding that Lever was guilty of the acts charged in the counts of which he was convicted, and not guilty of the acts charged in the counts of which he was acquitted. The Court also held that the convictions were supported by the evidence, and that the jury directions were appropriate. However, the Court held that the absence of a direction regarding the forensic disadvantage caused by delay resulted in a substantial miscarriage of justice. The Court held that the trial judge should have directed the jury that the delay had caused a significant forensic disadvantage, and that this was a matter of substantial prejudice to the applicant. The Court held that this error was likely to have had a significant effect on the jury's deliberations, and that it was not possible to say with confidence that the outcome would have been the same if the direction had been given.

The Court allowed the appeal, quashed the convictions, and ordered a re-trial. The Court held that the error in the jury direction was a substantial miscarriage of justice, and that it was not possible to say with confidence that the outcome would have been the same if the direction had been given. The Court held that the convictions were therefore unsafe and unsatisfactory, and that a re-trial was necessary. The Court held that the other grounds of appeal were not made out, and that there was no need to consider the issue of the sexual assault communications privilege.

Orders