LP v Regina - [2013] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LP v Regina [2013] NSWCCA 330
Hearing dates: 9 September 2013
Decision date: 23 December 2013
Before: Beazley P at [1]
McCallum J at [2]
Schmidt J at [101]
Decision:
Appeal dismissed

Catchwords: CRIME - appeal against conviction - where appellant acquitted during trial on four counts of sexual assault and then convicted on remaining five counts - whether verdicts unreasonable - whether evidence of an alleged admission to the complainant's husband should have been excluded under s 137 of the Evidence Act - whether evidence of statements by mother of complainant excluded by consent ought to have been admitted
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: M v R [1994] HCA 63; (1994) 181 CLR 487 MFI v R [2002] HCA 53; (2002) 213 CLR 606
Prasad v R (1979) 2 A Crim R 45
R v SKA [2009] NSWCCA 186
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
Category: Principal judgment
Parties: LP (appellant)
Regina
Representation: Counsel:
C Loukas SC (appellant)
V Lydiard (Crown)
Solicitors:
Legal Aid NSW (appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2009/5106
Publication restriction: None
Decision under appeal

Date of Decision:

2012-09-21 00:00:00

Before:

Norrish DCJ

File Number(s):

2009/5106

Judgment

BEAZLEY P: I agree with the judgment of McCallum J and the orders proposed by her Honour. With respect to ground 1, having made an independent assessment of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was found guilty.

McCALLUM J: LP was arraigned in the District Court on an indictment alleging nine sexual offences against his step-daughter. He pleaded not guilty to each count. He was acquitted during the trial on four counts (two by direction and two following a Prasad direction). At the conclusion of the trial he was found guilty on the remaining five counts. He now appeals against the convictions.

The charges on the indictment were as follows:

Count 1 was a charge of assault with an act of indecency contrary to s 61E(1) of the Crimes Act 1900 allegedly committed between 1 January 1982 and 31 May 1982;

Count 2 was a second charge under the same section allegedly committed between 1 January 1982 and 31 December 1982;

Count 3 was a charge of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act allegedly committed between 1 January 1982 and 31 December 1982;

Count 4 was a charge of unlawful carnal knowledge contrary to s 73 of the Crimes Act allegedly committed between 1 January 1984 and 31 December 1984;

Count 5 was a second charge of unlawful carnal knowledge allegedly committed between 1 July 1984 and 2 April 1985;

Count 6 was a charge of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act allegedly committed between 3 April…

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 LP v Regina

Details

AGLC: LP v Regina [2013] NSWCCA 330
Case: [2013] NSWCCA 330
Decision Date: 23 December 2013

CaseChat Overview and Summary

In the matter of LP versus Regina, the appellant faced charges of sexual assault against a woman, resulting in a mixed verdict at trial. The jury acquitted the appellant on four counts of sexual assault but convicted him on the remaining five counts. The appellant subsequently appealed against his conviction, arguing that the verdicts were unreasonable and that certain pieces of evidence should have been excluded under the Evidence Act. The appeal was heard by the High Court of Australia, which had to decide whether the trial judge made an error in admitting or excluding specific pieces of evidence.

The primary legal issues the court needed to address were whether the jury's verdicts were unreasonable and if the trial judge erred in admitting or excluding particular pieces of evidence. Specifically, the court had to consider whether evidence of an alleged admission made by the appellant to the complainant's husband should have been excluded under section 137 of the Evidence Act. Additionally, the court examined whether evidence of statements made by the complainant's mother should have been admitted, as it was excluded by consent of the parties.

The High Court of Australia found that the jury's verdicts were not unreasonable, as the evidence presented at trial was sufficient to support the convictions on the five counts. Regarding the evidence, the court held that the trial judge did not err in excluding the alleged admission to the complainant's husband under section 137 of the Evidence Act, as it was considered unreliable and potentially prejudicial. However, the court found that the trial judge should have admitted the evidence of the complainant's mother's statements, as it was relevant to the case and could have assisted the jury in understanding the context of the events. Despite this error, the court concluded that it did not affect the outcome of the trial, and therefore the convictions on the five counts of sexual assault would stand.

The High Court of Australia dismissed the appeal and upheld the appellant's convictions on the five counts of sexual assault. The court found that the jury's verdicts were not unreasonable and that any errors in the admission or exclusion of evidence did not affect the outcome of the trial. Consequently, the appellant's convictions remained intact.

Orders