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Passmore v R

Passmore v R

Case [2023] NSWCCA 65 24 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Passmore v R [2023] NSWCCA 65
Hearing dates: 7 March 2023
Date of orders: 24 March 2023
Decision date: 24 March 2023
Before: Payne JA at [1]
Garling J at [78]
Yehia J at [83]
Decision:
(1) Appeal allowed.
(2) Quash the appellant’s conviction.
(3) Enter verdict of acquittal on count 1 in the indictment.

Catchwords:
CRIME — Appeals — Appeal against conviction — whether jury verdict unreasonable— where appellant convicted of one count of making an indecent communication to a person under 16 — Crown case that indecent words were spoken in a phone call on one particular date — Crown required to prove beyond reasonable doubt that offending occurred on that date — whether jury must have had doubt that the words were spoken in a call on that date — where evidence of date of call was inconsistent — where complainant’s evidence of date of call was unreliable

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth), Schedule, Criminal Code
Telecommunications Act 1997 (Cth)

Cases Cited:
Dansie v R (2022) 403 ALR 221; [2022] HCA 25
Douglass v The Queen (2012) 290 ALR 699; [2012] [2012] HCA 34
Libke v The Queen (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 McDonald; R v Deblaquiere (2013) 233 A Crim R 185; [2013] ACTSC 122
R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Mark Passmore (Appellant)
Crown (Respondent)
Representation:
Counsel:

B Cochrane (Appellant)
J Single SC; S Love (Respondent)

Solicitors:
CB Criminal Law (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2019/58598
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the complainant’s name or any identifying or potentially identifying information is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 November 2021

Before:

Priestley SC DCJ

File Number(s):

2019/58598

HEADNOTE

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

After a jury trial in the District Court, Mark Passmore (the appellant) was convicted of one count of using a carriage service to transmit an indecent communication to a person under the age of 16, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The complainant was 15 at the relevant time. Initially, the Crown’s case was that the appellant said indecent words to the complainant in a phone call at some time between 7 February and 12 February 2019. Midway through the trial, the Crown amended the indictment to allege that the words were spoken in a phone call on 12 February 2019. At trial and on appeal, the Crown…

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 Passmore v R

Details

AGLC: Passmore v R [2023] NSWCCA 65
Case: [2023] NSWCCA 65
Decision Date: 24 March 2023

CaseChat Overview and Summary

In the High Court of Australia, the case of Passmore v R involved an appeal against conviction by the appellant, who was found guilty of making an indecent communication to a person under the age of 16. The central issue was whether the jury's verdict was unreasonable, particularly given the uncertainty around the date on which the alleged indecent communication occurred. The prosecution argued that the offence took place on a specific date, and they were required to prove beyond reasonable doubt that the offence occurred on that date. However, the evidence regarding the date of the call was inconsistent, and the complainant's testimony about the date was deemed unreliable.

The legal issues that the court had to decide included whether the Crown had successfully discharged its burden of proving the date of the offence and whether the jury must have entertained a reasonable doubt regarding the date of the indecent call. The court considered whether the inconsistency in the evidence and the unreliability of the complainant's testimony led to a situation where the jury could not be confident beyond reasonable doubt that the offence occurred on the date specified by the Crown. The court found that the jury might have had reasonable doubt about the date, which could have influenced their verdict.

The High Court, in ruling on the appeal, determined that the jury's verdict was indeed unreasonable given the circumstances. The court held that the prosecution's case was weakened by the unreliable evidence and the inconsistency in the date of the call. Consequently, the court quashed the conviction and ordered a new trial. The court emphasized the importance of the Crown proving the date of an offence beyond reasonable doubt and noted that when such proof is lacking, the jury may reasonably doubt the accuracy of the date.

Orders