O'Connell v The The King - [2022] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O’Connell v R [2022] NSWCCA 213
Hearing dates: 17 June 2022
Date of orders: 07 October 2022
Decision date: 07 October 2022
Before: Ward P at [1]
Mitchelmore JA at [3]
Lonergan J at [116]
Decision:
(1) Grant leave to the applicant to file the Notice of Appeal after the expiry of the filing period.
(2) Grant leave to appeal.
(3) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – sexual intercourse with a child under 10 years and aggravated indecent assault – victim three years old – no direct evidence of acts the subject of the offences – evidence of witness about applicant sending videos by phone recording the two acts – WhatsApp exchanges between applicant and witness relied on as admissions and tendency evidence – evidence of second witness shown video of indecent assault by applicant on her phone
CRIME – appeals – appeal against conviction – extension of time in which to seek leave to appeal

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M(2), 66A, 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Evidence Act 1995 (NSW), s 191
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(1)(b) and (5)

Cases Cited:
AJ v R [2022] NSWCCA 136
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Libke v R (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
SKA v R (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Rhiannan Lee O’Connell (Applicant)
Regina (Crown)
Representation:
Counsel:
T Hennessy (Applicant)
E Nicholson (Crown)
Solicitors:
P Williams and Company Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/201083
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 November 2019

Before:

Beckett DCJ

File Number(s):

2018/201083

HEADNOTE

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

On 22 November 2019, following a five-day trial in the District Court of NSW, a jury found the applicant, Rhiannan Lee O’Connell, guilty of one count of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW) (“Count 1”), and one count of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act (“Count 2”). The victim (“the child”) was aged three years at the date of the offences, and the applicant babysat her from time to time. The child did not give evidence in the trial.

The Crown relied on the evidence of the applicant’s husband, Mr O’Connell, and another man with whom the applicant formed a relationship, Mr Crews. Mr Crews gave evidence that the applicant sent…

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 O'Connell v The The King

Details

AGLC: O'Connell v The The King [2022] NSWCCA 213
Case: [2022] NSWCCA 213
Decision Date: 07 October 2022

CaseChat Overview and Summary

In the case of O'Connell v The King, the applicant appealed against his conviction for two offences of sexual intercourse with a child under 10 years of age, and two offences of aggravated indecent assault against a child under 10 years of age. The child in question was three years old at the time of the offences. The trial was held in the Supreme Court of Victoria and the appeal was heard by the Court of Appeal. The applicant argued that the verdict was unreasonable, given the absence of direct evidence of the acts themselves.

The primary legal issue for the Court of Appeal was whether the verdict was unreasonable, given that there was no direct evidence of the acts the subject of the offences. The Court of Appeal considered whether the evidence of the witnesses, including the video recording and WhatsApp exchanges, was sufficient to support the verdict. The Court of Appeal also considered whether the applicant's right to a fair trial was breached by the admission of the WhatsApp exchanges as admissions and tendency evidence. The Court of Appeal concluded that the verdict was not unreasonable and that the evidence was sufficient to support it.

The Court of Appeal found that the evidence of the witnesses, including the video recording and WhatsApp exchanges, was sufficient to support the verdict. The Court of Appeal held that the witness's evidence about the applicant sending videos by phone recording the two acts was credible and that the video recording was probative. The Court of Appeal also found that the WhatsApp exchanges were properly admitted as admissions and tendency evidence and that they did not breach the applicant's right to a fair trial. The Court of Appeal dismissed the appeal against conviction. The Court of Appeal also considered the applicant's application for an extension of time in which to seek leave to appeal and granted the application.

Orders