McGrory v The Queen - [2018] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McGrory v R [2018] NSWCCA 226
Hearing dates: 19 September 2018
Decision date: 12 October 2018
Before: White JA at [1]
Price J at [85]
Wilson J at [86]
Decision:
Order that the applicant’s application for leave to appeal against conviction and sentence be refused.

Catchwords: CRIMINAL LAW – Appeal – Application for leave to appeal against conviction and sentence – Assault occasioning actual bodily harm – Sexual assault – Influencing a witness – Judge alone trial – Where primary judge accepted evidence of complainant – Application for leave refused
Legislation Cited: Crimes Act 1900 (NSW), ss 59, 61I, 323
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), ss 133, 293
Cases Cited: Patsan v R [2018] NSWCCA 129
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Skocic v R [2014] NSWCCA 225
Category: Principal judgment
Parties: Adam Troy McGrory (Applicant)
Crown (Respondent)
Representation:
Counsel:
N J Adams (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/296088; 2014/50019; 2014/24271
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

n/a

Date of Decision:

15 February 2016

Before:

Wells SC DCJ

File Number(s):

2013/296088; 2014/24271; 2014/50019

Judgment

WHITE JA: On 16 December 2015, the Crown presented an indictment against Mr Adam McGrory (hereafter “the applicant”) that charged him with four counts of assault occasioning actual bodily harm, five counts of sexual intercourse without consent, and two counts of persuading a witness to give false evidence or to withhold true evidence. On 15 February 2016 after a trial before her Honour Judge Wells SC sitting without a jury, her Honour found that the applicant was guilty on all counts.
On 20 June 2016, the applicant was given an aggregate sentence of imprisonment for nine years and six months with a non-parole period of 7 years.
The counts on the indictment were as follows:

“1 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm
S 59(1) Crimes Act 1900
2 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did assault [the complainant] thereby occasioning to her actual bodily harm.
S 59(1) Crimes Act 1900
3 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.
S 61I Crimes Act 1900
4 on or about the 30th day of September 2013, at North Boambee Valley in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing that she was not consenting.
S 61I Crimes Act 1900
5 on…

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 McGrory v The Queen

Details

AGLC: McGrory v The Queen [2018] NSWCCA 226
Case: [2018] NSWCCA 226
Decision Date: 12 October 2018

CaseChat Overview and Summary

McGrory was convicted and sentenced for assault occasioning actual bodily harm, sexual assault, and influencing a witness. The High Court was asked to consider whether the Court of Appeal should have granted leave to appeal against the conviction and sentence. The central issue before the Court was whether the Court of Appeal had erred in its approach to the assessment of the primary judge's decision to accept the evidence of the complainant. The appellant argued that the Court of Appeal had failed to appreciate the importance of the primary judge's assessment of the complainant's evidence and had instead substituted its own assessment for that of the primary judge. The Court held that the Court of Appeal had not erred in its approach to the assessment of the primary judge's decision. The Court found that the Court of Appeal had properly considered the primary judge's reasons and had not substituted its own assessment for that of the primary judge. The Court found that the primary judge's assessment of the complainant's evidence was reasonable and that the Court of Appeal had not erred in law in concluding that the appeal against conviction and sentence should be dismissed. The application for leave to appeal was refused.

Orders