PH v The Queen - [2017] NSWCCA 194

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: PH v R [2017] NSWCCA 194
Hearing dates: 31 July 2017
Date of orders: 16 August 2017
Decision date: 16 August 2017
Before: Johnson J at [1]
Davies J at [2]
Lonergan J at [88]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeals – appeal against conviction – aggravated indecent assault of child – whether jury’s verdict unreasonable or cannot be supported by the evidence – uncle of 11 year old complainant – uncle instigates tickling game - physical acts not in dispute – whether the contact was intentional or accidental –– whether complainant’s opinion about applicant’s intention relevant – whether complainant’s evidence unreliable - appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: PH (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Buchen (Applicant)
C Webster SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/367183
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 September 2015

Before:

Baly DCJ

File Number(s):

2013/367183

Judgment

JOHNSON J: I have had the advantage of considering the judgment of Davies J. In approaching the sole ground of appeal which asserts that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence, I have considered the entirety of the evidence adduced at the trial of the applicant. Having done so, I have concluded that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the two offences charged against him. I agree with the reasons and proposed orders of Davies J.
DAVIES J: On 26 June 2015 the applicant was convicted by a jury of two counts of aggravated indecent assault of a child. The offences occurred on the same day on a date between 1 June 2013 and 16 September 2013. The complainant was the niece of the applicant.
On 18 September 2015 Judge Baly SC sentenced the applicant to a term of imprisonment of 18 months on each count but suspended the sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentences have now expired. The applicant is referred to by initials in this judgment as identification of him would tend to identify the complainant: s 578A Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW).
The applicant seeks leave to appeal on one ground only, namely, that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence.

The facts

The complainant, then aged 11 years, was staying overnight at the house of her…

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 PH v The Queen

Details

AGLC: PH v The Queen [2017] NSWCCA 194
Case: [2017] NSWCCA 194
Decision Date: 16 August 2017

CaseChat Overview and Summary

The appellant, PH, was convicted of aggravated indecent assault of his 11-year-old niece, the complainant. The case came before the court on appeal against the conviction. The central issue in this appeal was whether the jury's verdict was unreasonable or could not be supported by the evidence. The acts of physical contact were not disputed, but the central contention was whether these acts were intentional or accidental. Furthermore, the court examined whether the complainant's opinion about the appellant's intention was relevant and whether her evidence was reliable.

The court held that the jury was entitled to find that the appellant's actions were intentional. It was determined that the jury could reasonably conclude that the appellant’s actions were not accidental, despite his claims to the contrary. The court found that the complainant's testimony regarding her perception of the appellant's intent was relevant and could support the jury's verdict. The court rejected the argument that the complainant's evidence was unreliable, finding that her testimony was consistent and credible. As a result, the appeal was dismissed, affirming the original conviction.

The court concluded that the evidence was sufficient to support the jury's verdict, and the verdict itself was neither unreasonable nor unsupported. The appellant's conviction for aggravated indecent assault was upheld, and the appeal was dismissed in its entirety.

Orders