Mol v R

Case [2017] NSWCCA 76 28 April 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mol v R [2017] NSWCCA 76
Hearing dates: 8 February 2017
Decision date: 28 April 2017
Before: Payne JA at [1];
Johnson J at [95];
Fullerton J at [96].
Decision:
(1) Time to file the notice of appeal extended to 1 September 2016.
(2) Leave to appeal against conviction on grounds 1 and 2 of the notice of appeal granted.
(3) Appeal against conviction on grounds 1 and 2 of the notice of appeal dismissed.
(4) Leave to appeal against conviction on grounds 3 and 4 of the notice of appeal refused under r 4 of the Criminal Appeal Rules.
(5) Leave to appeal against sentence refused.

Catchwords:
CRIMINAL LAW – appeal against conviction – three complainants – six counts of indecent assault – five counts of sexual intercourse without consent –– tendency evidence – whether trial judge erred in admitting tendency evidence – whether probative value of tendency evidence outweighed by prejudicial effect – whether an order should have been made for separate trials – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice as a result of primary judge withdrawing a direction to the jury regarding consent – leave to appeal refused – appeal dismissed

CRIMINAL LAW – appeal against conviction – whether adequate directions given by primary judge in responding to a note from the jury regarding consent – leave to appeal refused – appeal dismissed
CRIMINAL LAW – appeal against sentence – relevance of breach of trust as aggravating factor – relevance of abusing professional position so as to warrant less weight being given for prior good character – relevance of post-offence conduct in assessing seriousness of offence – leave to appeal refused – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Crimes (Sentencing) Procedure Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: BC v R [2015] NSWCCA 327
DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
Holman v The Queen [1970] WAR 2
House v The King (1936) 55 CLR 499
Hughes v R [2015] NSWCCA 330
IMM v R (2016) 257 CLR 300; [2016] HCA 14
KAB v R [2015] NSWCCA 55
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4
R v DMC (2002) 137 A Crim R 246; [2002] NSWCCA 513
R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319
R v Kennedy [2000] NSWCCA 527
R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161
R v Johnson [2005] NSWCCA 186
Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
Stubley v Western Australia (2011) 242 CLR…

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 Mol v R

Details

AGLC: Mol v R [2017] NSWCCA 76
Case: [2017] NSWCCA 76
Decision Date: 28 April 2017

CaseChat Overview and Summary

In the case of Mol v R, the appellant, Mol, appealed against his conviction and sentence for multiple sexual offences against three complainants. The appellant was convicted of six counts of indecent assault and five counts of sexual intercourse without consent. Mol's appeal was heard in the High Court of Australia. The central issues in this case involved the admissibility of tendency evidence, the appropriateness of separate trials, the impact of the primary judge's directions to the jury regarding consent, and the relevance of certain factors in sentencing.

The court considered whether the trial judge erred in admitting tendency evidence, which the appellant argued had a prejudicial effect outweighing its probative value. The court found that the trial judge did not err in admitting the tendency evidence, as it was relevant to the issues of consent and intent, and its probative value was not substantially outweighed by the danger of unfair prejudice. Furthermore, the court held that there was no miscarriage of justice caused by the primary judge withdrawing a direction to the jury regarding consent. The court also found that the primary judge's response to the jury's note on consent was adequate. Finally, the court examined the relevance of the breach of trust, abusing professional position, and post-offence conduct in assessing the seriousness of the offence and the appellant's good character, ultimately finding these factors relevant to the sentencing process.

The High Court dismissed Mol's appeal against conviction, finding no error in the trial judge's handling of the evidence and directions to the jury. The court also refused leave to appeal on the issue of the adequacy of the jury directions and dismissed the appeal against sentence. The appellant's conviction and sentence were therefore upheld.

Orders