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RD (a pseudonym) v R

RD (a pseudonym) v R

Case [2021] NSWCCA 94 13 May 2021

Appeal

Unreasonable Verdicts

Admissibility of Evidence

Conviction Quashed

Verdict of Acquittal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RD (a pseudonym) v R [2021] NSWCCA 94
Hearing dates: 10 March 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Before: Macfarlan JA at [1];
Walton J at [56];
Hamill J at [57]
Decision:
(1)      Grant leave to appeal in respect of the applicant’s convictions on Counts 1, 2, 5, 6, 7, 8, 9, 11, 12, 13 and 14.
(2)      Allow the appeal in relation to the applicant’s convictions on Counts 1, 2, 8 and 12 charged in the Indictment dated 22 May 2019.
(3)      Quash the convictions on those Counts numbered 1, 2, 8 and 12.
(4)      Direct a verdict of acquittal on those Counts.
(5)      Quash the aggregate sentence imposed on the applicant on 16 July 2019.
(6)      Remit the proceedings to the District Court to resentence the applicant in respect of his convictions on Counts 3-7, 9-11 and 13-16 inclusive.
(7)      Otherwise dismiss the appeal.
(8) Pursuant to Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10, applicant to be detained in custody until his resentencing has concluded.
(9)      List the matter for mention in the District Court at the Sydney Downing Centre in the arraignment list at 9.30am on Friday 21 May 2021.

Catchwords:
CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence of sexual misconduct of applicant specific to particular charges or merely generalised assertions of misconduct – need for close examination of complainant’s evidence on each count – frequent use of word “would” in parts of evidence – specific recollection of acts occurring on a particular occasion in other parts of evidence – convictions on some counts quashed and verdicts of acquittal entered on those counts
CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence lacked sufficient quality and consistency to permit its acceptance by jury – no clear support for one count – conviction quashed and verdict of acquittal entered on that count
CRIME – appeals – successful appeal against convictions on ground of unreasonable verdicts – convictions quashed – whether appropriate to enter verdicts of acquittal or order new trial – Crown should not be permitted to attempt to obtain convictions at further trial by improving its case – absence of special circumstances – verdicts of acquittal entered

Legislation Cited:
Crimes Act 1900 (NSW), s 76
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Evidence Act 1995 (NSW), s 32
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10

Cases Cited:
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
Prasad v R [2020] NSWCCA 349
R v A2 [2019] HCA 35; (2019) 93 ALJR 1106

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 RD (a pseudonym) v R

Details

AGLC: RD (a pseudonym) v R [2021] NSWCCA 94
Case: [2021] NSWCCA 94
Decision Date: 13 May 2021

CaseChat Overview and Summary

In the case of RD (a pseudonym) v R, the applicant appealed against his convictions for multiple sexual offences, arguing that the verdicts were unreasonable. The Court of Appeal was tasked with assessing whether the complainant's evidence was specific enough to support the charges and whether it was of sufficient quality and consistency for acceptance by the jury. The case hinged on the specificity and consistency of the complainant's testimony regarding the sexual misconduct.

The court examined whether the complainant's evidence was sufficiently specific to the particular charges or if it merely comprised generalised assertions of misconduct. The complainant used the word "would" frequently in some parts of her evidence, while other parts detailed specific acts on particular occasions. The court concluded that for some counts, the complainant's evidence was not specific enough to support a conviction. Additionally, the court found that the evidence did not provide clear support for one of the counts, leading to the quashing of the conviction for that particular charge.

The Court of Appeal granted the application for leave to appeal and quashed the convictions on several counts, entering verdicts of acquittal on those counts. The reasoning was that the complainant's evidence lacked the necessary specificity and consistency to support the convictions. The court held that the Crown should not be permitted to attempt to obtain convictions at a further trial by improving its case, unless there were special circumstances. The court determined that, in the absence of such circumstances, the appropriate course was to enter verdicts of acquittal.

Orders