PA v R

Case [2015] NSWCCA 18 27 February 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PA v R [2015] NSWCCA 18
Hearing dates: 10 February 2015
Decision date: 27 February 2015
Before: Hoeben CJ at CL at [1]
Johnson J at [66]
Hamill J at [67]
Decision:
Leave to appeal against conviction granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – applicant convicted of one count of commit an act of indecency against a person aged 13 – acquitted on three other counts and the jury unable to agree on a fifth count – whether conviction on one count and the failure of the jury to agree on another was capable of giving rise to inconsistent verdicts – whether a failure by a jury to agree on a verdict could be regarded as analogous to a verdict – no authority in New South Wales – conflicting authority in Queensland and Victoria – inconsistent verdicts ground not made out – whether conviction unreasonable and not supported by the evidence – appeal dismissed.
Legislation Cited: Crimes Act 1900 – s61M(2),
Criminal Appeal Act 1912 (NSW) – s6(1)
Evidence Act 1999 – s165B
Cases Cited: Azzopardi v R [2001] HCA 25; 205 CLR 50
Black v R [1993] HCA 71; 179 CLR 44
Jones v R [1997] HCA 56; 191 CLR 439 at 453
Liberato v R (1985) 159 CLR 507
Longman v R [1989] HCA 60; 168 CLR 79
M v R [1994] HCA 63; 181 CLR 487
Mackenzie v R [1996] HCA 35; 190 CLR 348
MFA v R [2002] HCA 53; 213 CLR 606
Millar v The Queen [2003] WASCA 211
OGD v R (1997) 45 NSWLR 744
Osland v The Queen [1998] HCA 75; 197 CLR 316
Pillay and Ors v The Queen [2014] VSCA 249
R v CBF [2012] QCA 294
R v CX [2006] QCA 409
R v DAL [2005] QCA 281
R v R, GJ [2009] SASC 371; 105 SASR 506
R v Garrett [2009] QCA 300
R v Gipp (1998) 194 CLR 106
R v Markuleski (2001) 125 A Crim R 186
SKA v The Queen [2011] HCA 13; 243 CLR 400
R v Murray (1987) 11 NSWLR 12
TK v R [2009] NSWCCA 151; 74 NSWLR 299
Tukuafu v The Queen [2014] VSCA 345
Category: Principal judgment
Parties: PA – Applicant
Regina – Respondent Crown
Representation:
Counsel:
AJ Bellanto QC/P Rowe - Applicant
J Pickering SC – Respondent Crown
Solicitors:
M Voncina - Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/125246
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

04 April 2014

File Number(s):

2012/125246

Judgment

HOEBEN CJ at CL:

Charges and outcome of trial

The applicant was indicted before Armitage DCJ and a jury at Parramatta on 18 March 2014 in respect of five counts alleging sexual assault upon his daughter, LA (the complainant).

The five counts were as follows:

Count 1 – Between…

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 PA v R

Details

AGLC: PA v R [2015] NSWCCA 18
Case: [2015] NSWCCA 18
Decision Date: 27 February 2015

CaseChat Overview and Summary

The case of PA v R involved an appeal by the applicant against their conviction on one count of committing an act of indecency against a person aged 13. The applicant was acquitted on three other counts, and the jury was unable to reach a verdict on a fifth count. The applicant appealed on the grounds that the conviction on one count and the jury's failure to agree on another count resulted in inconsistent verdicts, and that the conviction was unreasonable and not supported by the evidence. The appeal was heard by the New South Wales Court of Criminal Appeal.

The legal issues the court had to decide were whether the conviction on one count and the jury's failure to agree on another could be considered inconsistent verdicts, and whether the conviction was unreasonable and unsupported by the evidence. The court noted that there was no New South Wales authority on the issue of whether a jury's failure to agree on a verdict could be regarded as analogous to a verdict. There were conflicting authorities in Queensland and Victoria, and the court found no authority in New South Wales to support the notion that a jury's failure to agree on a verdict could be considered an inconsistent verdict. Therefore, the inconsistent verdicts ground was not made out.

The court further examined whether the conviction was unreasonable and not supported by the evidence. After reviewing the evidence, the court found that the conviction was reasonable and supported by the evidence. The appeal was dismissed, and the conviction stood. The court found no error in the conviction and upheld the trial judge's decision.

Orders