R v WS

Case [2021] NSWCCA 124 21 June 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WS [2021] NSWCCA 124
Hearing dates: 22 March 2021
Date of orders: 21 June 2021
Decision date: 21 June 2021
Before: Hoeben CJ at CL at [1];
Price J at [2];
Ierace J at [410]
Decision:
(1) Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of Ground 1.
(2) Allow the appeal.
(3) Quash the convictions and sentence.
(4) Order that there be a re-trial of the appellant.
(5) Remit the matter for mention at the District Court at Sydney at 9:30am on 2 July 2021.

Catchwords:
CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D(1), 81
Criminal Appeal Rules (NSW), r 4
Criminal Code Act 1899 (QLD), 23(1)(b)
Criminal Procedure Act 1986 (NSW), s 293
Evidence Act 1995 (NSW), s 97

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
DC v R [2019] NSWCCA 234
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
IW v R [2019] NSWCCA 311
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
Pillay v R (2014) 43 VR 327; [2014] VSCA 249
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Dal [2005] QCA 281
Roos v R [2019] NSWCCA 67
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Texts Cited:
Nil

Category: Principal judgment
Parties: WS (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Game SC (Appellant)
A Cook (Appellant)
G Newton (Respondent)
Solicitors:
APJ Law (Appellant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/280784; 2014/361895; 2015/165571
Publication restriction:
Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons referred to in this…

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 WS

Details

AGLC: Decision restricted [2021] NSWCCA 124
Case: [2021] NSWCCA 124
Decision Date: 21 June 2021

CaseChat Overview and Summary

The appeal in R v WS was against the appellant's conviction for various sexual offences involving multiple complainants. The decision was made by the Court of Appeal, which reviewed the trial's proceedings, particularly focusing on the closing address by the Crown prosecutor regarding a recorded conversation. The appellant argued that the trial judge should have provided further directions to the jury on this evidence, a matter that was not raised during the trial. The appeal raised the question of whether the absence of such directions constituted a miscarriage of justice or rendered the verdicts concerning the complainants PW and JW unreasonable.

The court examined whether the Crown's closing address on the recorded conversation warranted further directions from the trial judge. It considered the absence of any objection or request for directions during the trial, noting the appellant's counsel's decision not to pursue this matter. The court evaluated whether the omission of additional directions led to a miscarriage of justice, considering the principles of fairness and the trial's integrity. It also assessed whether the jury's verdicts regarding the counts involving PW and JW were unreasonable in light of the evidence and the trial judge's directions.

The Court of Appeal determined that the trial judge did not err in not providing further directions on the recorded conversation. It held that the appellant's counsel's decision not to seek further directions was a forensic choice. The court found that the absence of additional directions did not result in a miscarriage of justice and that the verdicts were not unreasonable. Consequently, the appeal was dismissed, and the appellant's conviction was upheld.

The Court of Appeal dismissed the appeal and affirmed the appellant's conviction. The court did not find any miscarriage of justice or unreasonableness in the jury's verdicts, affirming the trial's outcome.

Orders