R v Ryan

Case [2013] NSWCCA 316 13 December 2013

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Court of Criminal Appeal

New South Wales

Case Title: R v Ryan

Medium Neutral Citation: [2013] NSWCCA 316

Hearing Date(s): 19 September 2013

Decision Date: 13 December 2013

Before: THE COURT ( Latham J, Schmidt J, Beech-Jones J)

Decision:
(1)The Crown appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (the Act) is granted.

(2)The rulings of Quirk DCJ on 13 May 2013 with respect to the admissibility of all recorded conversations between the complainant and the respondent are set aside

(3)The recordings of the conversations are admissible

Catchwords: CRIMINAL LAW - section 5F appeal - Crown appeal - sexual and physical assaults by respondent against adopted daughter - four counts of aggravated indecent assault, four counts of sexual intercourse with child between ages of 10 and 16 in circumstances of aggravation, three counts of sexual intercourse without consent, two counts of assault occasioning actual bodily harm, two counts of common assault, and two alternative accounts of aggravted indecent assault - trial judge made rulings regarding admissibility of recorded conversations between complainant and respondent - whether exclusion of recorded conversations substantially weakens Crown case - whether trial judge erred in finding that probative value of evidence of admissions was not high - whether trial judge erred in excluding evidence of admissions pursuant to s 137, Evidence Act - whether trial judge erred in excluding evidence of admissions pursuant to s 90, Evidence Act - appeal allowed - rulings of trial judge vacated

Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited: Christian v R [2012] NSWCCA 34
Em v The Queen [2007] HCA 46 ; 239 ALR 204
Festa v The Queen [2001] HCA 72; 208 CLR 593
Pavitt v R [2007] NSWCCA 88
Pfennig v the Queen [1995] HCA 7; 182 CLR 461
R v Murray (1987) 11 NSWLR 12
R v Shamouil [2006] NSWCCA 112 ; 66 NSWLR 228
R v Swaffield ; Pavic v The Queen [1998] HCA 1 ; 192 CLR 159
R v XY [2013] NSWCCA 121

Category: Principal judgment

Parties: Regina - Crown Appellant
Robert Ryan - Respondent

Representation

- Counsel: Counsel
H Wilson SC - Crown Appellant
A Bellanto QC - Respondent

- Solicitors: Solicitors
Solicitor for the Director of Public Prosecutions - Crown Appellant
Marsdens Law Group - Respondent

File Number(s): 2011/320362

Decision Under Appeal

- Before: AM Quirk DCJ

- Date of Decision: 13 May 2013

- Court File Number(s): 2011/320362

Publication Restriction: Publication prohibited pending outcome of trial.
Trial now concluded.

JUDGMENT

THE COURT : On 19 September 2013, the Court made an order allowing the Crown appeal in this matter pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (the Act). In addition, the Court vacated the rulings of Quirk DCJ on 13 May 2013 with respect to the admissibility of all recorded conversations between the complainant and the respondent, and determined that those recorded conversations are admissible. These are the reasons for those orders.
The respondent pleaded not guilty on 6…

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 Ryan

Details

AGLC: R v Ryan [2013] NSWCCA 316
Case: [2013] NSWCCA 316
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the case of R v Ryan, the respondent was convicted on multiple counts of serious sexual and physical assaults against his adopted daughter. The Crown appealed against the sentence on the basis that the trial judge's rulings on the admissibility of certain recorded conversations between the complainant and the respondent weakened the Crown's case. The Court of Appeal was tasked with determining whether the exclusion of these recorded conversations substantially weakened the Crown's case and whether the trial judge erred in excluding this evidence.

The court considered whether the trial judge erred in finding that the probative value of the evidence of admissions was not high and whether the trial judge erred in excluding the evidence of admissions pursuant to section 137 and section 90 of the Evidence Act. The court examined the trial judge's rulings in light of the principles of admissibility and relevance under the Evidence Act. The court found that the exclusion of the recorded conversations had a significant impact on the Crown's case, and that the trial judge erred in assessing the probative value of the evidence. The court also found that the trial judge erred in excluding the evidence of admissions under section 137 and section 90 of the Evidence Act.

The appeal was allowed, and the rulings of the trial judge were vacated. The case was remitted to the sentencing court for reconsideration of the sentence in light of the court's findings. The court emphasised the importance of ensuring that all relevant and probative evidence is considered in cases of serious sexual and physical assaults, and the need for trial judges to carefully assess the admissibility of evidence in accordance with the Evidence Act.

Orders