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McPhillamy v R

McPhillamy v R

Case [2017] NSWCCA 130 14 June 2017

Appeal

Admissibility of Evidence

Tendency Evidence

Compensatory Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McPhillamy v R [2017] NSWCCA 130
Hearing dates: 7 October 2016; further written submissions 24 and 25 October 2016
Decision date: 14 June 2017
Before: Meagher JA at [1];
Harrison J at [123];
RA Hulme J at [123]
Decision:
1. Extend time as may be required.
2. Grant leave to appeal against conviction.
3. Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal against conviction – charges of acts of indecency committed on young teenage boy – where trial judge does not give reasons for admitting tendency evidence – whether miscarriage of justice where no procedural difficulty resulting from absence of reasons and appellate court able to determine whether evidence wrongly admitted – evidence properly admitted – no substantial miscarriage of justice
EVIDENCE – admissibility – tendency evidence – charges of acts of indecency committed on young teenage boy – where evidence of two occasions 10 years earlier relied on to prove accused had tendency to be sexually interested in early teenage boys and to act on that interest – whether evidence had significant probative value – whether probative value of evidence substantially outweighed prejudicial effect
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(3A), 6(1)
Criminal Appeal Rules (NSW), r 25A(2)
Evidence Act 1995 (NSW), ss 95, 97(1), 101(2)
Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
BP v R; R v BP [2010] NSWCCA 303
Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129
City of Sydney Council v Satara [2007] NSWCA 148
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Director of Public Prosecutions v Boardman [1975] AC 421
Doyle v R; R v Doyle [2014] NSWCCA 4
El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10
Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Evans v The Queen [2006] NSWCCA 277; (2006) 164 A Crim R 489
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
Hoch v The Queen (1988) 165 CLR 292
House v The King (1936) 55 CLR 499
Hughes v R [2015] NSWCCA 330
Hughes v The Queen [2016] HCATrans 201
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
Le v R [2012] NSWCCA 202
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Madubuko v The Queen…

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 McPhillamy v R

Details

AGLC: McPhillamy v R [2017] NSWCCA 130
Case: [2017] NSWCCA 130
Decision Date: 14 June 2017

CaseChat Overview and Summary

The matter of McPhillamy v R involved an appeal against the conviction of the appellant, who had been found guilty of several charges of acts of indecency committed on a young teenage boy. The appellant sought to challenge the admission of tendency evidence at trial, arguing that the trial judge did not provide reasons for its admission and that this resulted in a miscarriage of justice. The appeal was heard in the High Court of Australia.

The central legal issues before the court were whether the absence of reasons from the trial judge for admitting the tendency evidence constituted a miscarriage of justice and whether the tendency evidence had significant probative value that substantially outweighed its prejudicial effect. The appellant argued that the lack of reasons meant that the trial judge may have overlooked relevant considerations and that the prejudicial effect of the evidence outweighed its probative value.

The court held that the absence of reasons from the trial judge did not result in a miscarriage of justice, as no procedural difficulties arose from this omission and the appellate court was able to determine whether the evidence was wrongly admitted. The court further found that the tendency evidence had significant probative value, as it was relevant to establishing the appellant's propensity to be sexually interested in early teenage boys and to act on that interest. The probative value of the evidence substantially outweighed its prejudicial effect, and therefore it was properly admitted. The court concluded that there was no substantial miscarriage of justice in the admission of the evidence.

The court dismissed the appeal and upheld the conviction of the appellant. The orders of the court were that the appeal be dismissed and the conviction and sentence of the appellant be affirmed.

Orders