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Long (a pseudonym) v R

Long (a pseudonym) v R

Case [2021] NSWCCA 212 3 September 2021

Appeal

Jurisdiction

Appropriate Concessions

Reliability of Evidence

Youth and Sentencing

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Long (a pseudonym) v R [2021] NSWCCA 212
Hearing dates: 4 August 2021
Decision date: 03 September 2021
Before: Basten JA at [1]; Adamson J at [30]; Campbell J at [145]
Decision:
(1) Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5.
(2)   Refuse leave to appeal in respect of ground 6.
(3)   Otherwise grant leave to appeal.
(4)   Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim’s claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as “independent” was not capable of having any real bearing on the jury’s understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested “video transcripts” — applicant’s trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of “appropriate concessions” — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts
CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A
Crimes Act 1900 (NSW), ss 61HA, 61M, 66A, 66C, 578A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), ss 306M, 306X, 306Z, 306ZI
Evidence Act 1995 (NSW), s 164
Jury Act 1977 (NSW), s 55C
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AB v R [2019] NSWCCA 82
DBG v R [2002] NSWCCA 328; 133 A Crim R 227
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55
Jarrett v R [2014] NSWCCA 140
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
MFA v 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 Long (a pseudonym) v R

Details

AGLC: Long (a pseudonym) v R [2021] NSWCCA 212
Case: [2021] NSWCCA 212
Decision Date: 03 September 2021

CaseChat Overview and Summary

Long (a pseudonym) appeals against both his convictions and sentence for child sex offences. The appeal was heard by the NSW Court of Criminal Appeal. The applicant challenges both the conviction and the sentence imposed by the trial judge. Regarding the convictions, the applicant argues that the trial judge erred by not providing warnings under sections 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) at the appropriate time and by giving an incorrect direction concerning the use of complaint evidence. He also contends that the jury reached an unreasonable verdict on count 4. In relation to the sentence, the applicant submits that it is manifestly excessive.

The court considered whether the trial judge erred in the timing and nature of the warnings given to the jury regarding the evidence presented. The court held that while there is no statutory direction on the timing of the warnings, it is within the trial judge's discretion to give such warnings in the opening and summing up. The court also found that the direction concerning the use of complaint evidence was not capable of misleading the jury, as the reference to the evidence as "independent" did not affect their understanding of its use. The court concluded that the trial judge did not err in replaying the recorded interviews when requested by the jury and that the applicant's trial counsel did not object to this action. The court determined that the jury's verdict on the other counts was reasonable, and that the evidence regarding count 4, while limited, did not lead the jury to believe that the complainant misunderstood the events, thus not affecting the verdict on the other counts. Regarding the sentence, the court found that it was not manifestly excessive, taking into account the youth and immaturity of the applicant, his knowledge of wrongdoing, and the exploitative and opportunistic nature of the offending.

Orders