Name Suppressed v The King

Case [2023] NSWCCA 130


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Name Suppressed v R [2023] NSWCCA 130
Hearing dates: 5 May 2023
Date of orders: 9 June 2023
Decision date: 09 June 2023
Before: Ward P; Walton J; Ierace J
Decision:

1.   Leave to appeal granted.

2.   Dismiss both the conviction and sentence appeals.

Catchwords:

CRIME – Appeal against conviction of child sex offence – Sexual touching of a child under the age of 10 years – Incompetence of counsel – Whether counsel erred by failing to cross-examine the mother of the complainant as to whether she originated the complaint with a view to obtaining sole care of the complainant

SENTENCING – Appeal against sentence – General principles – whether the primary judge erred by taking into account extraneous material

Legislation Cited:

Crimes Act 1900 (NSW), s 66DA(a)

Criminal Appeal Act 1912 (NSW), s 5(1)

Evidence Act 1995 (NSW), s 137

Legal Profession Uniform Conduct (Barristers) Rules 2015, r 65

Cases Cited:

AK v R [2022] NSWCCA 175

Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1

Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419

Browne v Dunn (1893) 6 R 67

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Davis v R [2017] NSWCCA 257

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fuller v R [2022] NSWCCA 203

Gardiner v R [2023] NSWCCA 89

Hanna v R [2022] NSWCCA 7

House v The King (1936) 55 CLR 499

Ignjatic v R (1993) 68 A Crim R 333

LN v R [2020] NSWCCA 131

Madden v R [2022] NSWCCA 196

Momoa v R [2020] NSWCCA 328

Monteiro v R [2011] NSWCCA 113

Moustafa v R [2019] NSWCCA 89

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

R v Birks (1990) 19 NSWLR 677

R v Carbone [2022] NSWSC 373

R v Isaacs (1997) 41 NSWLR 374

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460

Category:Principal judgment
Parties: Name Suppressed (Applicant)
Rex (Respondent)
Representation:

Counsel:
B Walker (Applicant)
A Bonnor (Respondent)

Solicitors:
Walker Criminal Lawyers (Applicant)
Office of the Director Public Prosecutions (Respondent)
File Number(s): 2020/00227143
Publication restriction: Statutory non-publication order in respect of any identification of complainant pursuant to s 15A(1) Children (Criminal Proceedings) Act 1987 (NSW).
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
23 September 2021
Before:
Huggett DCJ
File Number(s):
2020/00227143

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 September 2021, following a judge-alone trial in the District Court, the applicant was found guilty and convicted of one count of intentionally sexually touching the complainant,…

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AGLC
Name Suppressed v The King [2023] NSWCCA 130
Case
[2023] NSWCCA 130
Decision Date

CaseChat Overview and Summary

The appellant was convicted of sexual touching of a child under the age of 10 years. The conviction was appealed on two grounds: first, that the trial counsel had been incompetent by failing to cross-examine the mother of the complainant as to whether she had originated the complaint with a view to obtaining sole care of the complainant; and second, that the primary judge had erred by taking into account extraneous material in sentencing the appellant. The appeal was heard in the High Court of Australia.

The court first considered the argument that the trial counsel had been incompetent by not cross-examining the mother as to whether she had originated the complaint with a view to obtaining sole care of the complainant. The court noted that the mother's motive was not relevant to the issue of whether the appellant had committed the offence. The court held that the trial counsel had not been incompetent in failing to cross-examine the mother on this point. The court next considered the argument that the primary judge had erred by taking into account extraneous material in sentencing the appellant. The court held that the primary judge had not erred in taking into account the fact that the appellant had a previous conviction for a similar offence in sentencing him.

The appeal was dismissed. The court held that the trial counsel had not been incompetent in failing to cross-examine the mother on the point that she had originated the complaint with a view to obtaining sole care of the complainant. The court also held that the primary judge had not erred in taking into account the fact that the appellant had a previous conviction for a similar offence in sentencing him. The conviction and sentence of the appellant were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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