Medium Neutral Citation: LH v R [2024] NSWCCA 165
Hearing dates: 27 May 2024
Date of orders: 6 September 2024
Decision date: 06 September 2024
Before: N Adams J at [1];
Sweeney J at [291];
R A Hulme AJ at [292].
Decision:
(1) Leave to appeal against conviction is granted.
(2) The appeal against conviction is dismissed.
(3) Leave to appeal against sentence is granted.
(4) The appeal against sentence is dismissed.

Catchwords:
CRIME – Appeals – Appeal against conviction –whether miscarriage of justice arose out of conduct of Crown prosecutor – right to silence – consciousness of guilt reasoning – drawing of inferences unavailable on evidence – whether trial judge erred directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s demeanour and answers in ERISP – whether tendency directions amounted to a denial of procedural fairness appeal – appeal dismissed
CRIME – Appeals – Appeal against sentence – multiple sexual assaults of child aged 10 years – whether sentencing judge erred in incorporating elements of s 66EA into sentencing decision – De Simoni principle – appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act1987 (NSW), s 15A
Crimes Act1900 (NSW), ss 66C(2), 66DB(a), 66EA, 578A
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Evidence Act 1995 (NSW), ss 20, 89
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AB v R [2023] NSWCCA 165
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Armstrong v R [2013] NSWCCA 113
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206
Day v R (No 2) [2023] NSWCCA 312
DC v R [2019] NSWCCA 234
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Elmasri v R [2010] NSWCCA 11
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Glenn (a pseudonym) v R [2020] NSWCCA 308
Gould v R; R v Gould [2021] NSWCCA 92
Greenhalgh v R [2017] NSWCCA 94
Harper v R [2022] NSWCCA 211
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
Kramer v R; R v Kramer [2023] NSWCCA 152
Latu v R [2023] NSWCCA 19
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Lyndon v R [2014] NSWCCA 112
Marco v The King [2023] NSWCCA 307
Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim…

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 LH v The King

Details

AGLC: LH v The King [2024] NSWCCA 165
Case: [2024] NSWCCA 165
Decision Date: 06 September 2024

CaseChat Overview and Summary

The appellant, LH, appealed against his conviction and sentence for multiple sexual assaults on a child aged 10 years. The appeal was heard by the High Court of Australia. The appeal against conviction raised issues concerning the conduct of the Crown prosecutor, the right to silence, and the use of consciousness of guilt reasoning. The appeal against sentence questioned whether the sentencing judge correctly incorporated elements of s 66EA into the sentencing decision, as well as whether the De Simoni principle was appropriately applied.

The court considered whether a miscarriage of justice arose from the conduct of the Crown prosecutor and whether the trial judge erred in directing the jury to rely on consciousness of guilt reasoning. The court held that there was no miscarriage of justice due to the conduct of the prosecutor, and that the trial judge did not err in directing the jury on consciousness of guilt. The court also concluded that the drawing of inferences from the appellant's demeanour and answers was not unavailable on the evidence. Regarding the appeal against sentence, the court found that the sentencing judge did not err in incorporating elements of s 66EA into the sentencing decision and correctly applied the De Simoni principle.

The appeal against conviction was dismissed as the court found no miscarriage of justice and no error in the trial judge's direction to the jury. The appeal against sentence was also dismissed, with the court upholding the sentencing judge's approach. The court held that the appellant's right to silence was not breached, and that the tendency directions did not amount to a denial of procedural fairness. The appeal was dismissed in its entirety, affirming the conviction and sentence imposed by the trial court.

Orders