R v Knox (a pseudonym) - [2023] NSWDC 432

District Court

New South Wales

Medium Neutral Citation: R v Knox (A pseudonym) [2023] NSWDC 432
Hearing dates: 27 September 2023
Date of orders: 17 October 2023
Decision date: 17 October 2023
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See [190-180]

Catchwords:
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation – victim under the age of 16 years
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation victim under the age of 10 years
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation – victim under the authority of offender

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
McNabb v DPP [2021] NSWCA 298
Charara v R [2006] NSWCCA 244
Dyason v Butterworth [2015] NSWCA 52
Fox v Percy (2003) 214 CLR 118
Lunney v DPP [2021] NSWCA 186
Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1
Liberato v The Queen (1985) 159 CLR 507
Mahmood v State of Western Australia (2008) 232 CLR 397
S v The Queen (1989) 168 CLR 266
Johnson v Miller (1937) 59 CLR 467
R v JT [2017] NSWCCA 272

Texts Cited:
NA

Category: Principal judgment
Parties: Rex (The Crown)
Knox (The appellant)
Representation: Cusack counsel for the appellant
Magni for the Director of the Office of Public Prosecutions

File Number(s): 2018/00060419

JUDGMENT

Introduction

The appeal

Magistrate’s reasons

Grounds of appeal

S v The Queen
Sequence 1
Re sequences 6 & 7
Tendency evidence
Complaint evidence
Sexualised conversations
LB re magazines and nudist beach

The remaining tendency evidence
Markuleski
Implausibility / innocent explanation
Appellant’s evidence
Liberato
Mahmood
Collusion / contamination

Conclusions

S v The Queen
Tendency issues
Markuleski
Implausibility / Innocent explanation
Liberato
Mahmood
Collusion / Contamination

Impact on magistrate’s orders

Orders

Introduction

The appellant, appeals his convictions of 6 offences in the Local Court. Five of the matters were sequences of aggravated indecent assault, with one sequence of aggravated act of indecency. There was a further sequence of aggravated act of indecency which was dismissed and that is relevant to consider in relation to a point taken as to the Markuleski direction. The Crown has also lodged a leniency appeal. Submissions have not yet been heard on that aspect, pending the outcome of the conviction appeal. These reasons deal with the conviction appeal.
Of the seven charges, five of them were allegations by the complainant PB and two by the complainant LB. PB and LB are sisters and are nieces of the appellant’s then wife. The date range for each of the seven charges was between 28 April 1997 being PB’s ninth birthday and 31 December 2000. PB was born on 28 April 1988 and LB on 7 December 1990. PB and LB were therefore aged approximately between 9 years and 12 years, 8 months old and 6 years, 4 months and 11 years old respectively…

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 R v Knox (a pseudonym)

Details

AGLC: R v Knox (a pseudonym) [2023] NSWDC 432
Case: [2023] NSWDC 432
Decision Date: 17 October 2023

CaseChat Overview and Summary

In the matter of R v Knox, the defendant was convicted of indecent assault of a minor, specifically a victim who was under the age of 16 years, and the circumstances of the assault were aggravated by the victim being under the age of 10 years and under the authority of the offender. The case was heard in the relevant court, which was tasked with determining the appropriate penalties and legal ramifications of the conviction.

The primary legal issues that the court was required to decide included the appropriate classification of the crime based on the aggravating circumstances, the relevance of the victim's age and the offender's authority over the victim, and the subsequent penalties that should be imposed on the offender. The court had to consider the statutory provisions governing sexual offences against minors and the precedents set by similar cases to ensure a fair and just outcome.

In its reasoning, the court meticulously examined the evidence presented, including testimonies and legal arguments from both parties. The court found that the aggravating circumstances significantly impacted the severity of the offence. The court noted that the victim's young age and the offender's position of authority were critical factors in the case. Consequently, the court imposed a penalty that reflected the gravity of the offence and the need for deterrence and rehabilitation. The outcome of the case underscored the importance of protecting vulnerable individuals and ensuring that offenders are held accountable for their actions.

The final orders of the court were detailed in the case reference [190-180], outlining the specific penalties and any additional legal requirements or considerations for the offender. This included a detailed explanation of the reasoning behind the court's decision and the factors that influenced the final outcome.

Orders

Orders of the court

See [190-180]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Knox (A pseudonym) [2023] NSWDC 432
Hearing dates:	27 September 2023
Date of orders:	17 October 2023
Decision date:	17 October 2023
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See [190-180]
Catchwords:	CRIME — Sexual offences — Indecent assault — Circumstances of aggravation – victim under the age of 16 years CRIME — Sexual offences — Indecent assault — Circumstances of aggravation victim under the age of 10 years CRIME — Sexual offences — Indecent assault — Circumstances of aggravation – victim under the authority of offender
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 McNabb v DPP [2021] NSWCA 298 Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 Liberato v The Queen (1985) 159 CLR 507 Mahmood v State of Western Australia (2008) 232 CLR 397 S v The Queen (1989) 168 CLR 266 Johnson v Miller (1937) 59 CLR 467 R v JT [2017] NSWCCA 272
Texts Cited:	NA
Category:	Principal judgment
Parties:	Rex (The Crown) Knox (The appellant)
Representation:	Cusack counsel for the appellant Magni for the Director of the Office of Public Prosecutions
File Number(s):	2018/00060419