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Name Suppressed v The King

Name Suppressed v The King

Case [2023] NSWCCA 130 9 June 2023

Appeal

Sentencing

Incompetence of Counsel

Extraneous Material

Criminal Law

Type to search within this case.

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,…

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 Name Suppressed v The King

Details

AGLC: Name Suppressed v The King [2023] NSWCCA 130
Case: [2023] NSWCCA 130
Decision Date: 09 June 2023

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