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
Lunney v DPP (2021)105 NSWLR 236
McNab v DPP (NSW) (2021)106 NSWLR 430
Melbourne v The Queen (1999) 198 CLR 1
MWJ v The Queen (2005) 222 ALR 436
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
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
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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.
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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.
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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
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Conviction appeals from the Local…
Continue reading R v Wong
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- AGLC
- R v Wong [2022] NSWDC 257
- Case
- [2022] NSWDC 257
- Decision Date
CaseChat Overview and Summary
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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