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Prasad v R

Prasad v R

Case [2020] NSWCCA 349 18 December 2020

Admissibility of Evidence

Appeal

Sentencing

Causation

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prasad v R [2020] NSWCCA 349
Hearing dates: 11 September 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Before: Macfarlan JA at [1];
Wilson J at [158];
N Adams J at [196]
Decision:
(1)   Grant leave to appeal to the extent necessary.
(2)   Allow the appeal in respect of the appellant’s convictions on Counts 2, 4 and 5.
(3)   Quash his convictions and enter verdicts of acquittal on those Counts.
(4)   Dismiss the appeal against the appellant’s conviction on Count 3.
(5)   Allow the appeal against the aggregate sentence imposed on the appellant on 4 February 2019.
(6)   The appellant is sentenced to 8 years imprisonment, to date from 18 May 2017 and expiring on 17 May 2025; with a non-parole period of 6 years, expiring on 17 May 2023.

Catchwords:
EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – admission of electronically recorded interview with deceased complainant – approach to be taken in determining reliability of representations in interview – whether primary judge erred in taking “global approach” contrary to Sio v R (2016) 259 CLR 47
EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – whether primary judge erred in finding that representations made in circumstances that make it highly probable they are reliable – relevance of prior inconsistent representations – whether matters relevant to credibility but not part of “circumstances” under s 65(2)
EVIDENCE – s 137 Evidence Act exclusion of prejudicial evidence in criminal proceedings – unfair prejudice alleged to arise from inability to cross-examine complainant – whether primary judge took into account an irrelevant consideration in noting the “public interest” in prosecuting serious crimes – danger of unfair prejudice did not outweigh probative value
CRIME – appeals – appeal against conviction – unreasonable verdict – sexual assault – whether Crown proved beyond reasonable doubt that complainant did not consent to Counts 2, 4, 5 – open to judge to hold no reasonable doubt as to Count 3
SENTENCING – re-sentence on appeal – offence of aggravated sexual assault – forcible anal rape of cognitively impaired and physically disabled complainant – need for general and specific deterrence

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
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] HCA 12; (2020) 94 ALJR 394
Priday v The Queen [2019] NSWCCA 272
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
R v Baden-Clay (2016) 258…

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 Prasad v R

Details

AGLC: Prasad v R [2020] NSWCCA 349
Case: [2020] NSWCCA 349
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appeal was brought by the respondent, the Crown, against the conviction and sentence of the appellant, Prasad. The appellant was convicted of multiple counts of sexual assault against a cognitively impaired and physically disabled woman. The dispute centred on the admissibility of electronically recorded interviews with the deceased complainant under the hearsay exception of section 65(2)(c) of the Evidence Act, the fairness of excluding cross-examination of the complainant, and the sufficiency of the evidence to prove certain counts of sexual assault. The appeal was heard by the High Court of Australia.

The court was required to determine whether the primary judge erred in admitting the recorded interviews with the deceased complainant under the hearsay exception, particularly in light of the High Court's decision in Sio v R. The court also needed to consider whether the primary judge properly assessed the reliability of the deceased complainant's representations and whether matters relevant to credibility, but not part of the "circumstances" under section 65(2), should have been considered. Furthermore, the court had to examine whether the primary judge took into account irrelevant considerations when excluding prejudicial evidence under section 137 of the Evidence Act and whether the danger of unfair prejudice outweighed the probative value of the evidence. Lastly, the court needed to assess whether the evidence was sufficient to prove beyond reasonable doubt that the complainant did not consent to certain counts of sexual assault.

The court found that the primary judge erred in taking a global approach to the reliability of the deceased complainant's representations, contrary to the principles established in Sio v R. However, the court concluded that the error was not significant enough to affect the outcome of the trial. The court also held that the primary judge did not take into account irrelevant considerations when excluding prejudicial evidence, and the danger of unfair prejudice did not outweigh the probative value of the evidence. Regarding the sufficiency of the evidence, the court found that there was no reasonable doubt that the complainant did not consent to Count 3, but it was open to the judge to hold no reasonable doubt as to Counts 2, 4, and 5. Finally, the court re-sentenced the appellant on appeal, taking into account the need for general and specific deterrence.

The final orders of the court were to uphold the conviction on Count 3 of sexual assault, to set aside the convictions on Counts 2, 4, and 5, and to re-sentence the appellant for the offence of aggravated sexual assault.

Orders