Rao v R

Case [2019] NSWCCA 290 9 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rao v R [2019] NSWCCA 290
Hearing dates: 30 October 2019
Decision date: 09 December 2019
Before: Gleeson JA at [1]
Harrison J at [155]
Cavanagh J at [156]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal against conviction on counts 1, 2, 3 and 4.
(3) Vary the sentence imposed in the District Court so that it provides:
(a) Sentence the offender to an aggregate sentence of a term of imprisonment for 4 years, comprising a non-parole period of 2 years to commence from the date of these orders or such later date on which the appellant is first taken into custody, together with a balance of a term of 2 years expiring 4 years after the date of these orders or 4 years from such later date on which the appellant is first taken into custody;
(b) Note that the earliest day on which the offender will become eligible to be released on parole is 8 December 2021 or the date two years from the date the offender is taken into custody, if that be not the date of these orders.

Catchwords:
CRIME – appeals – leave to appeal against conviction – unreasonable verdict – two counts of sexual intercourse without consent and two counts of indecent assault – Crimes Act 1900 (NSW), ss 61I & 61L – assessment of the nature and quality of evidence – asserted implausibility of complainant’s account – whether inconsistencies in evidence and inadequate explanation for delay in report to police – leave granted and appeal dismissed
CRIME – appeals – where applicant granted conditional bail pending appeal – time on bail not counted towards sentence – Criminal Appeal Act 1912 (NSW), ss 18(2) & 28A – commencement date of sentence adjusted
Legislation Cited: Bail Act 2013 (NSW), s 22
Crimes Act 1900 (NSW), ss 61I, 61L, 578A
Crimes (Administration of Sentences) Amendment Act 2004 (NSW), s 4, Sch 3.2[2]
Crimes (Sexual Assault) Amendment Act 1981 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)(b), 18(2), 28A
Cases Cited: Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
Fennell v The Queen [2019] HCA 37
Khamis v R; Hussain v R [2018] NSWCCA 131
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Hall [2004] NSWCCA 127
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stanford v R [2018] NSWCCA 249
Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22
Category: Principal judgment
Parties: Mr Vaish Rao (Appellant)
Crown (Respondent)
Representation:
Counsel:
Mr B Hughes SC / Ms C Wasley (Appellant)
Ms C Curtis (Respondent)
Solicitors:
Marsdens Law Group (Appellant)
Solicitor Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/339066
Publication restriction: Statutory…

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 Rao v R

Details

AGLC: Rao v R [2019] NSWCCA 290
Case: [2019] NSWCCA 290
Decision Date: 09 December 2019

CaseChat Overview and Summary

The applicant, Rao, appealed against his conviction for two counts of sexual intercourse without consent and two counts of indecent assault. The appeal was heard in the New South Wales Court of Criminal Appeal. The applicant argued that the verdict was unreasonable, claiming that the evidence was inconsistent and the delay in reporting the alleged incidents to the police was not adequately explained. He also claimed that the complainant's account was implausible.

The court needed to decide whether the verdict was unreasonable and if the applicant's arguments about the evidence were valid. The court also needed to consider the effect of the applicant's time on bail on his sentence. The court assessed the nature and quality of the evidence and the applicant's arguments about the inconsistencies and delay in reporting. The court found that the applicant's arguments did not undermine the jury's verdict. The court also found that the applicant's time on bail should not count towards his sentence.

The court granted leave to appeal but dismissed the appeal. The court found that the verdict was not unreasonable and that the evidence was sufficient to support the verdict. The court also found that the delay in reporting and inconsistencies in the evidence did not undermine the verdict. The court adjusted the commencement date of the applicant's sentence to reflect the time he had spent on bail.

Orders