R v SG - [2017] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v SG [2017] NSWCCA 202
Hearing dates: 28 July 2017
Date of orders: 28 August 2017
Decision date: 28 August 2017
Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Bellew J at [3]
Decision:
(1)   The appeal by the Director of Public Prosecutions against the determination of his Honour Judge Williams SC of 5 May 2017 excluding the evidence of SG is allowed.

(2)   The determination of his Honour Judge Williams SC excluding the evidence of SG is set aside.
(3)   The evidence of SG is admissible in the proceedings against the respondent.
Catchwords: CRIMINAL LAW – Appeal – Crown appeal against the exclusion of evidence by the trial judge – Where the respondent charged with multiple offences of assaulting and sexually assaulting his wife – Where the 10 year old daughter of the respondent and the victim gave an account to police of one particular incident the subject of three separate counts in the indictment – Where the trial judge determined that the evidence was not relevant – Where the trial judge further determined that even if relevant the evidence should be excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the respondent – Where the trial judge failed to identify the facts in issue – Where the trial judge had regard to whether the evidence of the child might be rejected by a jury on the basis that it was confusing – Where the trial judge concluded that there was a danger of unfair prejudice because the respondent would be unable to properly test the evidence – Errors established – Evidence relevant and admissible – Crown appeal allowed – Determination of the trial judge set aside
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Festa v R (2001) 208 CLR 593; [2001] HCA 72
Hughes v The Queen [2017] HCA 20
Nye v State of New South Wales & ors [2002] NSWSC 1270
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Ali [2015] NSWCCA 72
R v Burton [2013] NSWCCA 335
R v Dickman [2017] HCA 24
Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701
Category: Principal judgment
Parties: Regina – Appellant
SG – Respondent
Representation:
Counsel:
S Dowling SC – Appellant
S Fraser – Respondent
Solicitors:
C Hyland, Solicitor for Public Prosecutions (NSW) – Appellant
Legal Aid Commission (NSW) – Respondent

File Number(s): 2015 / 382013
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 May 2017

Before:

His Honour Judge Williams SC

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
McCALLUM J: I agree with Bellew J.
BELLEW J: On 4 May 2017, SG (“the respondent”) pleaded not guilty to an…

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 SG

Details

AGLC: R v SG [2017] NSWCCA 202
Case: [2017] NSWCCA 202
Decision Date: 28 August 2017

CaseChat Overview and Summary

In this case, the Crown sought to appeal against the decision of a trial judge to exclude certain evidence from being presented to the jury in a case involving the respondent, who was charged with multiple counts of assault and sexual assault against his wife. The excluded evidence was provided by the 10-year-old daughter of the respondent and the victim, who recounted details of one particular incident that formed the basis of three separate charges in the indictment. The trial judge found the evidence to be irrelevant and, even if relevant, decided that it should be excluded as its probative value was substantially outweighed by the danger of unfair prejudice to the respondent. The judge also considered whether the jury might reject the child's evidence on the basis that it was confusing and determined that there was a danger of unfair prejudice because the respondent would be unable to properly test the evidence.

The legal issues before the court were whether the evidence of the child was relevant and admissible under the rules of evidence, and if so, whether the trial judge had correctly applied the balancing test under section 137 of the Evidence Act. The court needed to determine whether the trial judge's decision to exclude the evidence was correct, and if not, whether the errors were so significant as to warrant setting aside the trial judge's determination. The Crown argued that the evidence was both relevant and admissible and that the trial judge had erred in excluding it.

The court found that the evidence provided by the child was indeed relevant to the charges against the respondent and that the trial judge had erred in finding it irrelevant. The court further found that the trial judge had failed to identify the facts in issue and had not properly considered the probative value of the evidence. The trial judge's decision to exclude the evidence was therefore found to be in error. The court held that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Consequently, the Crown's appeal was allowed, and the trial judge's determination to exclude the evidence was set aside.

Orders