Basten JA at [1]; Hidden J at [172]; Wilson J at [176]
Decision:
(1) With respect to the 2009 convictions –
(a) grant the applicant leave to appeal against the convictions for all offences; (b) dismiss the appeal.
(2) With respect to the 2011 convictions –
(a) grant the applicant leave to appeal limited to ground 2; (b) with respect to ground 2, dismiss the appeal.
(3) With respect to the appeal against the aggregate sentence –
(a) grant the applicant leave to appeal; (b) set aside the sentence imposed in the District Court on 22 August 2011; (c) in place thereof, impose an aggregate sentence, and (d) sentence the applicant to imprisonment for 24 years with a non-parole period of 18 years, to commence on 28 December 2008. The first date on which the offender is eligible for parole is 27 December 2026.
Catchwords:
APPEAL – leave to appeal – criminal trial – interlocutory decision – joint trial ordered with respect to separate complainants – Basha inquiry held – complainants cross-examined on contacts with each other – whether counsel prevented from reopening the issue of separate trial – leave required – Criminal Appeal Act 1912 (NSW), s 5(1)(b)
APPEAL – conviction – leave to appeal – challenge to jury direction – whether distinction between tendency and coincidence explained – no complaint about directions at trial – leave required – Criminal Appeal Rules (NSW), r 4
CRIMINAL LAW – sentencing – sentencing for historical sexual offences following two separate trials – whether sentence accorded with sentencing principles applied at time of offending – whether leniency should be afforded where accused first convicted of similar offences which post-dated the offences on trial – whether intervening change of maximum penalties for various offences at different trials properly reflected in indicative sentences
CRIMINAL LAW – sentencing – aggregate sentence – earlier trial completed before s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) commenced – whether aggregate sentence available in relation to earlier convictions – whether accused convicted prior to commencement of s 53A
CRIMINAL LAW – sentencing – aggregate sentence – whether non-parole period for each indicative sentence required – whether indicative sentences manifestly excessive – whether principle of totality applicable to aggregate sentence
EVIDENCE – admissibility – tendency – sexual offences – evidence of uncharged acts admitted as tendency evidence – possibility of concoction suggested in general terms during cross-examination on voir dire – whether possibility of concoction affected the probative value of evidence – whether potential prejudicial effect – whether concoction relied on at trial
EVIDENCE – relationship evidence – evidence of other incidents involving witness – evidence rejected under tendency rule at pre-trial hearing – evidence admitted as relationship evidence to explain the response of witness
[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.
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AGLC
Mcintosh v R [2015] NSWCCA 184
Case
[2015] NSWCCA 184
Decision Date
CaseChat Overview and Summary
In the case of Mcintosh v R, the applicant sought leave to appeal his conviction and sentence. The application raised multiple issues, including the trial judge's decision to order a joint trial for separate complainants, the adequacy of jury directions, and the appropriateness of the sentence imposed. The applicant argued that the trial judge prevented his counsel from reopening the issue of separate trials, and that the jury directions did not adequately distinguish between tendency and coincidence evidence. The applicant also contended that the sentence was excessive and did not accord with sentencing principles applied at the time of the offending.
The Court considered the application under the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules (NSW). The Court found that the applicant's arguments regarding the interlocutory decision and jury directions did not meet the threshold for leave to appeal, as the applicant had not demonstrated that the alleged errors were likely to have affected the outcome of the trial. The Court also found that the sentence imposed was appropriate, taking into account the principles of totality and the changes in maximum penalties for the various offences at different trials.
The Court rejected the applicant's argument that the aggregate sentence was not available in relation to earlier convictions, as the applicant was convicted prior to the commencement of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court also found that the non-parole period for each indicative sentence was not manifestly excessive, and that the principle of totality was properly applied to the aggregate sentence.
The Court further considered the admissibility of evidence of uncharged acts and other incidents involving the witness, and found that the trial judge had correctly admitted the evidence as relationship evidence to explain the response of the witness. The Court rejected the applicant's argument that the possibility of concoction affected the probative value of the evidence, and found that the potential prejudicial effect was outweighed by the probative value of the evidence.
The application for leave to appeal was dismissed.