R v Wong

Case [2022] NSWDC 257 8 July 2022

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District Court

New South Wales

Medium Neutral Citation: R v Wong [2022] NSWDC 257
Hearing dates: 4 July 2022
Date of orders: 8 July 2022
Decision date: 08 July 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 110 – 111

Catchwords:
APPEALS - crime – conviction appeal from Local Court to District Court – sexual touching offence - Crimes Act 1900 (NSW), s 61KC(a) – whether Liberato direction misapplied – absence of findings about the complainant’s reliability – significance to be ascribed to inconsistencies – whether rule in Browne v Dunn infringed when appellant gave evidence about matters not put to the complainant in her evidence – whether tender of document by the appellant’s counsel at hearing wrongfully refused – whether more extended use should have been made of character evidence called for the appellant - whether Crown discharged ultimate onus of proof

Legislation Cited:
Crimes Act 1900 (NSW) ss 61KC, 61KD
Crimes (Appeal and Review) Act 2001 (NSW) s 18
Criminal Procedure Act 1986 (NSW) ss 293A, 294AA
Evidence Act 1995 (NSW) ss 47, 108(3)

Cases Cited:
Browne v Dunn (1893) 6 R 67
De Silva v The Queen (2019) 268 CLR 57
Ewen v R [2015] NSWCCA 117
Hofer v R (2021) 395 ALR 1
Lunney v DPP (2021)105 NSWLR 236
McNab v DPP (NSW) (2021)106 NSWLR 430
Melbourne v The Queen (1999) 198 CLR 1
Murray v R (1987) 11 NSWLR 12
MWJ v The Queen (2005) 222 ALR 436
Neto v R [2020] NSWCCA 128
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Pell v The Queen (2020) 268 CLR 123
R v MG (2006) 175 A Crim R 342
Scaysbrook v R [2022] NSWCCA 69

Category: Principal judgment
Parties: Mr Wong (appellant)
Office of the Director or Public Prosecutions (ODPP)
Representation: Ms O’Rourke for the appellant
Ms Pinkerton for the ODPP

File Number(s): 2020/00150137
Publication restriction: Non-publication of the complainant’s name
Decision under appeal

Court or tribunal:

Burwood Local Court

Jurisdiction:

Criminal

Date of Decision:

24 February 2022

Before:

Magistrate Viney

File Number(s):

2020/00150137

REASONS FOR Judgment

Background

On 24 February 2022, the appellant was found guilty in the Burwood Local Court of the offence of sexual touching without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). This was after he had been found not guilty of an offence under s 61KD(1)(a) of the Crimes Act 1900 (NSW). The hearing occurred on a single day, 12 April 2021. After the Magistrate determined his guilt, the appellant was sentenced to a community corrections order for 12 months.
In particular, he was found guilty of the charge that on 13 May 2020 at Ryde, he sexually touched the complainant, without her consent, by placing both of his hands on top of her breasts and massaging them.
The appellant appeals against that conviction and, if such appeal be unsuccessful, appeals against the penalty imposed in the Local Court.

Approach to conviction appeals from the Local Court

Conviction appeals from the Local…

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 Wong

Details

AGLC: R v Wong [2022] NSWDC 257
Case: [2022] NSWDC 257
Decision Date: 08 July 2022

CaseChat Overview and Summary

The appeal in R v Wong originated from a conviction in the Local Court of New South Wales, concerning an alleged sexual touching offence under section 61KC(a) of the Crimes Act 1900 (NSW). The appellant, Wong, contested his conviction in the District Court, arguing that the trial judge misapplied the Liberato direction, failed to make findings about the reliability of the complainant, and did not appropriately weigh the significance of inconsistencies in her evidence. Wong also claimed that the rule in Browne v Dunn was infringed when he was permitted to give evidence about matters not put to the complainant in her evidence. Additionally, he argued that the tender of a document by his counsel at the hearing was wrongfully refused, and that more extended use should have been made of character evidence called for the appellant. Finally, Wong contended that the Crown did not discharge the ultimate onus of proof.

The court needed to determine whether the Liberato direction was misapplied, whether the trial judge should have made findings about the complainant's reliability, and how much significance should be ascribed to inconsistencies in her evidence. The court also needed to decide whether the rule in Browne v Dunn was infringed, whether the tender of the document was wrongfully refused, and whether the character evidence should have been used more extensively. Finally, the court had to consider whether the Crown had discharged its ultimate onus of proof.

The District Court found that the trial judge did not misapply the Liberato direction, and that there was no requirement to make findings about the complainant's reliability or to weigh the significance of inconsistencies in her evidence. The court held that the rule in Browne v Dunn was not infringed, as the matters put to the complainant were matters of substance rather than collateral matters. The court also found that the tender of the document was not wrongfully refused, and that the character evidence called for the appellant was appropriately used. Finally, the court determined that the Crown had discharged its ultimate onus of proof.

The District Court dismissed the appeal and affirmed Wong's conviction. The court found that the trial judge properly applied the Liberato direction, that there was no requirement to make findings about the complainant's reliability or to weigh the significance of inconsistencies in her evidence. The court held that the rule in Browne v Dunn was not infringed, that the tender of the document was not wrongfully refused, and that the character evidence was appropriately used. Finally, the court determined that the Crown had discharged its ultimate onus of proof.

Orders

Orders of the court

See paragraph 110 – 111

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Wong [2022] NSWDC 257

Most Recent Citation

Davis v The King [2024] NSWDC 414

Cases citing this decision · 2 of 2 shown

Rainbow v The King
[2024] NSWDC 632 Para 5

…Court: Lunney v DPP [2021] NSWCA 186 and McNab v DPP (NSW) 2021 106 NSWLR 430 (McNab) as were recently helpfully summarised by Abadee DCJ in R v Wong [2022] NSWDC 257 at [5] – [9]. Those cases affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error,…
Davis v The King
[2024] NSWDC 414 Para 11

…Court: Lunney v DPP [2021] NSWCA 186 and McNab v DPP (NSW) 2021 106 NSWLR 430 (McNab) as were recently helpfully summarised by Abadee DCJ in R v Wong [2022] NSWDC 257 at [5] – [9]. Those cases affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error,…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Scaysbrook v The The Queen
[2022] NSWCCA 69

…8 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Pell v The Queen (2020) 268 CLR 123 R v MG (2006) 175 A Crim R 342 Scaysbrook v R [2022] NSWCCA 69 Category: Principal judgment Parties: Mr Wong (appellant) Office of the Director or Public Prosecutions (ODPP) Representation: Ms O’Rourke for the appellant Ms Pinkerton f…
McNab v Director of Public Prosecutions
[2021] NSWCA 298

…019) 268 CLR 57 Ewen v R [2015] NSWCCA 117 Hofer v R (2021) 395 ALR 1 Lunney v DPP (2021)105 NSWLR 236 McNab v DPP (NSW ) (2021)106 NSWLR 430 Melbourne v The Queen (1999) 198 CLR 1 Murray v R (1987) 11 NSWLR 12 MWJ v The Queen (2005) 222 ALR 436 Neto v R [2020] NSWCCA 128 Oneflare Pty Ltd v Chernih [2017] NSWCA…
Lunney v DPP
[2021] NSWCA 186 Para 5

…ourt’s approach to appeals against convictions from the Local Court, being McNab v DPP (NSW ) (2021) 106 NSWLR 430 (“ McNab ”) and Lunney v DPP (2021) 105 NSWLR 236 (‘ Lunney ”).…
Neto v R
[2020] NSWCCA 128 Para 103

…etion, to direct herself that she should be attuned to addressing weaknesses or deficiencies in the evidence of a complainant. 15. Also in Neto v R [2020] NSWCCA 128…
Pell v The Queen
[2020] HCA 12 Para 61

…In this regard, the appellant submitted that, as was demonstrated in Pell v The Queen (2020) 268 CLR 123 on appeal, the appellate court should examine the record to see, notwithstanding a positive assessment by the tribunal of fact as to the complainant’s credibility and reliability, the existence of ‘inconsistencies…
De Silva v The Queen
[2019] HCA 48 Para 75

…As the High Court observed in De Silva v The Queen (2019) 268 CLR 57 the Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the trier of fact may be left with the impression that the evidence on which the accused relies upon will on…
Hofer v R
[2019] NSWCCA 244 Para 80

…This rule is applicable in criminal proceedings. As the High Court stated in Hofer v R (2021) 395 ALR 1 (“ Hofer ”), it requires that where it is intended that the evidence of a witness on a particular matter should not be accepted, that which is to be relied upon to impinge the witnesses’ testimony, should be put…
Oneflare Pty Ltd v Chernih
[2017] NSWCA 195 Para 81

…to a party, specific questions need not necessarily be put to the witness of or from the other party. In this context, in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 (a civil case), Meagher JA said (Gleeson JA and Leeming JA agreeing) at [42] about the rule that:…
Ewen v R
[2015] NSWCCA 117

…n (1893) 6 R 67 De Silva v The Queen (2019) 268 CLR 57 Ewen v R [2015] NSWCCA 117 Hofer v R (2021) 395 ALR 1 Lunney v DPP (2021)105 NSWLR 236 McNab v DPP (NSW ) (2021)106 NSWLR 430 Melbourne v The Queen (1999) 198 CLR 1 Murray v R (1987) 11 NSWLR 12 MWJ v The Queen (2005) 222 ALR 436 Neto v R [2020] NSWCCA 128 O…
R v MG
[2006] VSCA 264 Para 82

…h prior notice may, in the context of a criminal proceeding, derive from a defendant’s record of interview [9] . 9. R v MG (2006) 175 A Crim R 342; [2006] VSCA 264 per Coldrey AJA (Nettle JA and Ashley JA agreeing) at [85]…
MWJ v The Queen
[2005] HCA 74 Para 83

…where the rule is infringed in a criminal proceeding, which is not only adversarial but also accusatorial in nature. [11] 10. MWJ v The Queen (2005) 222 ALR 436 per Gleeson CJ and Heydon J at [19]; and Hofer at [31] 11. Hofer at [29]…
Melbourne v The Queen
[1999] HCA 32

…CA 117 Hofer v R (2021) 395 ALR 1 Lunney v DPP (2021)105 NSWLR 236 McNab v DPP (NSW ) (2021)106 NSWLR 430 Melbourne v The Queen (1999) 198 CLR 1 Murray v R (1987) 11 NSWLR 12 MWJ v The Queen (2005) 222 ALR 436 Neto v R [2020] NSWCCA 128 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Pell v The Queen (2020) 268 CLR 123…
Browne v Dunn
113 ER 1206

…Review) Act 2001 (NSW) s 18 Criminal Procedure Act 1986 (NSW) ss 293A, 294AA Evidence Act 1995 (NSW) ss 47, 108(3) Cases Cited: Browne v Dunn (1893) 6 R 67 De Silva v The Queen (2019) 268 CLR 57 Ewen v R [2015] NSWCCA 117 Hofer v R (2021) 395 ALR 1 Lunney v DPP (2021)105 NSWLR 236 McNab v DPP (NSW ) (2021)106 NSWLR 430…

Legislation cited in this decision · 4

Evidence Act 1995 (Cth)
108(3), 108(3)(a), 47 6 mentions (from Para 84)
Crimes Act 1900 (ACT)
61KC, 61KC(a), 61KD 4 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
293A, 294AA 3 mentions (from Para 60)
Crimes (Appeal and Review) Act 2001 (NSW)
18 2 mentions (from Para 4)

Medium Neutral Citation:	R v Wong [2022] NSWDC 257
Hearing dates:	4 July 2022
Date of orders:	8 July 2022
Decision date:	08 July 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 110 – 111
Catchwords:	APPEALS - crime – conviction appeal from Local Court to District Court – sexual touching offence - Crimes Act 1900 (NSW), s 61KC(a) – whether Liberato direction misapplied – absence of findings about the complainant’s reliability – significance to be ascribed to inconsistencies – whether rule in Browne v Dunn infringed when appellant gave evidence about matters not put to the complainant in her evidence – whether tender of document by the appellant’s counsel at hearing wrongfully refused – whether more extended use should have been made of character evidence called for the appellant - whether Crown discharged ultimate onus of proof
Legislation Cited:	Crimes Act 1900 (NSW) ss 61KC, 61KD Crimes (Appeal and Review) Act 2001 (NSW) s 18 Criminal Procedure Act 1986 (NSW) ss 293A, 294AA Evidence Act 1995 (NSW) ss 47, 108(3)
Cases Cited:	Browne v Dunn (1893) 6 R 67 De Silva v The Queen (2019) 268 CLR 57 Ewen v R [2015] NSWCCA 117 Hofer v R (2021) 395 ALR 1 Lunney v DPP (2021)105 NSWLR 236 McNab v DPP (NSW) (2021)106 NSWLR 430 Melbourne v The Queen (1999) 198 CLR 1 Murray v R (1987) 11 NSWLR 12 MWJ v The Queen (2005) 222 ALR 436 Neto v R [2020] NSWCCA 128 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Pell v The Queen (2020) 268 CLR 123 R v MG (2006) 175 A Crim R 342 Scaysbrook v R [2022] NSWCCA 69
Category:	Principal judgment
Parties:	Mr Wong (appellant) Office of the Director or Public Prosecutions (ODPP)
Representation:	Ms O’Rourke for the appellant Ms Pinkerton for the ODPP
File Number(s):	2020/00150137
Publication restriction:	Non-publication of the complainant’s name
Decision under appeal	Court or tribunal: Burwood Local Court Jurisdiction: Criminal Date of Decision: 24 February 2022 Before: Magistrate Viney File Number(s): 2020/00150137