LH v The Queen - [2020] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LH v R [2020] NSWCCA 262
Hearing dates: 16 July 2020
Date of orders: 15 October 2020
Decision date: 15 October 2020
Before: Payne JA at [1];
Wilson J [2];
Ierace J [115]
Decision:
1. Leave to appeal against the convictions recorded against the applicant with respect to counts 2 and 3 is refused

Catchwords:
CRIME – appeals – appeal against conviction – child sexual assault offences – asserted inconsistencies in evidence of Crown witnesses – whether the verdicts were unreasonable – whether there was a miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Libke v The Queen (2007) 239 CLR 599; [2007] HCA 30
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 376 ALR 478; [2020] HCA 12
R v Dudko (2002) [2000] NSWCCA 336; 132 A Crim R 371
R v Milat (Court of Criminal Appeal (NSW), 26 February 1998, unrep)
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: LH (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Shridhar (Appellant)
C Curtis (Respondent)
Solicitors:
Total Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00194404
Publication restriction: Nil
Section 578 of the Crimes Act 1900 prohibits publication of anything by which the complainant might be identified
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Gartelmann SC DCJ

File Number(s):

2018/00194404

Judgment

PAYNE JA: I have read the decision of Wilson J in draft. I agree with the orders proposed by her Honour. Having independently reviewed the evidence, I have concluded that the verdicts returned by the jury were well open to them.
WILSON J: From 26 to 30 August 2019, the applicant stood trial before the District Court of New South Wales, sitting in Newcastle, on an indictment charging him with one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1), and two counts of having sexual intercourse with a person of or above the age of 14 years and under the age of 16 years contrary to s 66C(4) of the Crimes Act 1900 (NSW) (counts 2 and 3). On the last day of trial, the jury returned verdicts of guilty to each count. On 13 December 2019, a sentence of 6 years imprisonment, with a non-parole period of 4 years and 6 months was imposed upon him for those crimes. The applicant seeks leave to appeal against his convictions on counts 2 and 3.
The applicant proposes a single ground of appeal:

“That in all the circumstances the…

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 Queen

Details

AGLC: LH v The Queen [2020] NSWCCA 262
Case: [2020] NSWCCA 262
Decision Date: 15 October 2020

CaseChat Overview and Summary

The appellant, LH, was convicted of child sexual assault offences. He sought to appeal against his conviction, contending that there were inconsistencies in the evidence provided by the Crown witnesses and that the verdicts were unreasonable, potentially indicating a miscarriage of justice. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether the jury's verdicts were unreasonable and unsafe, given the alleged inconsistencies in the evidence. The appellant argued that the discrepancies in the evidence from the Crown witnesses were significant enough to undermine the reliability of the verdicts. The court had to determine whether these inconsistencies were so substantial that they would render the verdicts unjust.

The court carefully reviewed the evidence and concluded that, while there were indeed inconsistencies in the Crown witnesses' accounts, these did not reach the level of significance that would justify overturning the jury's verdicts. The court held that the jury was entitled to assess the credibility of the witnesses and to accept or reject their evidence based on the overall weight and reliability of the testimony. The court found that the jury's decision, despite the inconsistencies, was within the range of reasonable outcomes that could be reached based on the evidence presented. The appeal was therefore dismissed.

In light of the court's findings, the final orders of the court were that the appeal against conviction be dismissed, and the convictions and sentences imposed by the trial court were upheld. The appellant's conviction for the child sexual assault offences remained in place.

Orders