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LS v The Queen

LS v The Queen

Case [2019] NSWCCA 258 31 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: LS v R [2019] NSWCCA 258
Hearing dates: 21 October 2019
Decision date: 31 October 2019
Before: Hoeben CJ at CL at [1];
Walton J at [122];
Price J at [123]
Decision:
(1) Grant leave to appeal against conviction.
(2) The appeal against conviction is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal –13 counts alleging sexual misconduct by an uncle against his niece – jury trial – applicant found guilty of six of the charges and not guilty of seven charges – single ground of appeal asserting unreasonable verdicts – offences said to have occurred between 1991 and 2000 – complainant aged 4 when offending commenced – Crown case depended on evidence of complainant – challenge to complainant’s credit – tendency evidence tendered in Crown case – whether jury verdicts inconsistent – effect of concessions made by complainant – credibility issues essentially a jury matter – well open to jury to be satisfied beyond reasonable doubt as to guilt of the applicant. Leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: AH v R [2019] NSWCCA 152
Artery v R [2017] NSWCCA 259
BM v R [2017] NSWCCA 133
Darby v R [2016] NSWCCA 164
Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
Hughes v The Queen [2017] HCA 20; 263 CLR 338
Jafary v R [2018] NSWCCA 243
Jones v The Queen [1997] HCA 56; 191 CLR 439
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Miller v R [2014] NSWCCA 34
ML v R [2015] NSWCCA 27
Palmer v R [2018] NSWCCA 205
R v Carbone [2000] NSWCCA 387
The Queen v Nguyen [2010] HCA 38; 242 CLR 491
MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
SKA v The Queen [2011] HCA 13; 243 CLR 400
Still v R [2010] NSWCCA 131
The Queen v Bauer [2018] HCA 40; 92 ALJR 846
Category: Principal judgment
Parties: LS – Applicant
Regina – Respondent Crown
Representation:
Counsel:
A Healey – Applicant
H Roberts – Respondent Crown
Solicitors:
L Belovic – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/191730
Publication restriction: Non-publication order re: identity of the complainant and applicant.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 November 2017

Before:

McLennan SC DCJ

File Number(s):

2016/191730

JUDGMENT

HOEBEN CJ at CL:

Nature of proceedings

The applicant stood trial in the District Court at Tamworth before his Honour Judge McLennan SC and a jury between 1 November and 15 November 2017 on an indictment containing 13 counts alleging sexual misconduct towards the same complainant. He was found guilty of six of the charges (Counts 1, 2, 3, 7, 11 and 12) and…

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 LS v The Queen

Details

AGLC: LS v The Queen [2019] NSWCCA 258
Case: [2019] NSWCCA 258
Decision Date: 31 October 2019

CaseChat Overview and Summary

The matter of LS v The Queen involved an appellant who was found guilty of six counts of sexual misconduct against his niece, following a jury trial. The alleged offences spanned from 1991 to 2000, during which the complainant was aged between 4 and 14 years. The crux of the Crown's case rested on the testimony of the complainant, who was now an adult, and the court had to consider the admissibility of tendency evidence as well as the credibility of the complainant. The appellant contested the verdict on the grounds that it was unreasonable, given the evidence presented.

The legal issues before the court centred on whether the jury's verdict was unreasonable and whether it was open to the jury to find the appellant guilty beyond a reasonable doubt, given the nature of the evidence and the complainant's credibility. The court was tasked with examining the admissibility of tendency evidence, the impact of concessions made by the complainant, and the overall credibility of the complainant's testimony. The appellant argued that the jury's decision was unreasonable due to the complainant's alleged inconsistencies and the absence of corroborative evidence.

The court held that the credibility of the complainant and the weight to be given to her evidence were matters for the jury. The court noted that the jury was entitled to consider the entire case, including the tendency evidence, and to be satisfied beyond reasonable doubt of the appellant's guilt. The court found that the jury's verdicts were not unreasonable, as they were well supported by the evidence presented, and that the jury was entitled to conclude that the appellant was guilty of the offences charged. The court dismissed the appeal, confirming the appellant's convictions on six counts of sexual misconduct.

The court granted leave to appeal but dismissed the appeal, affirming the appellant's convictions on the six counts of sexual misconduct. The court's decision underscored the principle that issues of credibility and the weight to be given to evidence are for the jury to determine, provided the evidence is sufficient to satisfy the jury of the accused's guilt beyond reasonable doubt.

Orders