NW v R

Case [2023] NSWCCA 134 9 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NW v R [2023] NSWCCA 134
Hearing dates: 17 October 2022
Date of orders: 09 June 2023
Decision date: 09 June 2023
Before: Meagher JA at [1];
Button J at [66];
Wilson J at [69]
Decision:
(1) Extend the time for the applicant to file his draft notice of appeal to 5 April 2022.
(2) Grant leave to appeal on grounds 1 and 2, and dismiss the appeal on each ground.

Catchwords:
CRIME — appeals — appeal against conviction — inconsistent verdicts — verdicts not inconsistent — unreasonable verdict — verdict not unreasonable

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61I, 61J(1), 66EB(3), 91H(2), 578A(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Code (Cth), s 474.27A(1)
Criminal Procedure Act 1986 (NSW), s 294

Cases Cited:
DS v R [2022] NSWCCA 55
Franklin v R [2021] NSWCCA 260
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1995] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Olivieri v R [2016] NSWCCA 169
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Stone (Court of Criminal Appeal (England and Wales), 13 December 1954, unrep)
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category: Principal judgment
Parties: NW (Applicant)
Rex (Respondent)
Representation:
Counsel:

P Doyle (Applicant)
M Millward (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/299572
Publication restriction: Pursuant to Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), publication of any matter which identifies or is likely to identify the complainant or any child witness in connection with this proceeding is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

18 July 2018

Before:

Norrish QC DCJ

File Number(s):

2016/299572

JUDGMENT

MEAGHER JA: The applicant seeks leave to appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b) against his conviction on three counts of sexual intercourse without consent. Those convictions followed a jury trial in the District Court sitting at Wagga Wagga between 9 and 18 July 2018. The applicant was tried in respect of seven offences alleged to have been committed against a female complainant aged fifteen or sixteen years old. The convictions from which he seeks leave to appeal are in respect of counts 5, 6 (the statutory alternative) and 7.
The charged offences, including the statutory alternatives in relation to counts 4 and 6, and resulting verdicts, are summarised in the table below:

Count

Offence

Verdict

1

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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 NW v R

Details

AGLC: NW v R [2023] NSWCCA 134
Case: [2023] NSWCCA 134
Decision Date: 09 June 2023

CaseChat Overview and Summary

NW appeals against a conviction for a crime, arguing that the verdict was unreasonable. The appeal was heard by the High Court of Australia. The respondent, R, is the state. The court was required to determine whether the verdict was unreasonable and whether the verdicts were inconsistent. The appellant's argument centred on the claim that the verdicts were inconsistent and unreasonable. The court examined the evidence and the reasoning of the trial judge to determine if the verdict was open to the jury on the evidence presented. The court found that the verdicts were not inconsistent and that the verdict was not unreasonable. The trial judge had considered all relevant evidence and provided adequate reasons for the verdict. The appeal was dismissed, and the conviction upheld. The court did not find it necessary to make any further orders.

Orders