Mitchelmore JA at [1] Fagan J at [20] Dhanji J at [117]
Decision:
Orders made on 24 December 2024:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the conviction with respect to count 1 on the indictment dated 7 September 2022.
(4) Quash the conviction with respect to the single count on the indictment dated 21 October 2022.
(5) Quash the aggregate sentence imposed by O’Rourke DCJ on 23 September 2023.
(6) The question whether the Court should direct the entry of verdicts of acquittal on the counts in respect of which the convictions have been quashed or order a new trial on those counts is reserved for determination on the papers, following receipt of submissions from the parties.
Additional orders:
(1) With respect to the offence in count 1 on the indictment dated 7 September 2022, enter a verdict of acquittal;
(2) With respect to the offence in the single count on the indictment dated 21 October 2022, enter a verdict of acquittal;
(3) With respect to the offence that the appellant on 29 October 2020 did an act with the intention of perverting the course of justice, the appellant is sentenced to imprisonment for 14 months, with a non-parole period of 10 months commencing on 12 September 2023. The non-parole period expired on 11 July 2024. The total sentence expired on 11 November 2024.
Catchwords:
CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence
CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal
EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect
EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task
[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
New v The King [2025] NSWCCA 32
Case
[2025] NSWCCA 32
Decision Date
CaseChat Overview and Summary
In the case of New v The King, the appellant, New, appealed against his convictions for sexual offences, which were upheld by the District Court. The appeal was heard in the Supreme Court of New South Wales. The appellant challenged the admission of tendency evidence and the trial judge's failure to provide adequate directions to the jury regarding the use of such evidence. The appeal was also against the sentences imposed.
The central legal issues the court had to address were whether the trial judge erred in admitting the tendency evidence, and if so, whether this constituted a miscarriage of justice. Additionally, the court needed to determine if the failure to provide proper directions to the jury about the use of tendency evidence constituted a miscarriage of justice. The appeal further sought to challenge the sentences imposed by the District Court.
The court found that the tendency evidence was improperly admitted because it was overly general and the probative value did not outweigh the prejudicial effect. The court held that the evidence did not directly support the tendency it was meant to prove, and the Crown relied on significantly less serious conduct to establish the tendency. Furthermore, the court held that the omission of proper directions to the jury about the use of tendency evidence constituted a miscarriage of justice, as it undermined the standard of proof and created a real risk that the jury was deflected from their fundamental task. Consequently, the court allowed the appeal in part, quashed the convictions, and entered verdicts of acquittal. The sentences for the pervert the course of justice offence were quashed, and the matter was remitted to the District Court for resentencing.
The final orders of the court were to quash the convictions, enter verdicts of acquittal, and remit the matter to the District Court for resentencing in relation to the pervert the course of justice offence. The appeal against the sentence was not necessary to determine as the convictions were quashed.