RKF v R

Case [2016] NSWCCA 116 15 June 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RKF v R [2016] NSWCCA 116
Hearing dates: 3 March 2016
Date of orders: 15 June 2016
Decision date: 15 June 2016
Before: Bathurst CJ at [1]; Hall J at [57]; R A Hulme J at [58]
Decision:
Grant the applicant leave to appeal.
Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – interlocutory order – application for trial by judge alone – whether failure to apply principle that applicant is entitled to defend himself by all forensically available means – whether failure to properly balance need for objective community standards against prejudice to accused – whether error in finding directions to jury could overcome prejudice – whether consideration of extraneous material
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes Act 1900 (NSW), s 61M
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 132
Cases Cited: A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
Cheih-Wei Lin v R [2015] NSWCCA 264
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
House v The King [1936] HCA 40; 55 CLR 499
R v Belghar [2012] NSWCCA 86
R v BWM (1998) 91 A Crim R 260
Redman v R [2015] NSWCCA 110
Robinson v R [2016] NSWCCA 108
Turnbull v R [2016] NSWCCA 109
Category: Principal judgment
Parties: RKF (Applicant)
Crown (Respondent)
Representation:
Counsel:
C Davenport (Applicant)
N Adams (Respondent)
Solicitors:
Miers Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/00022298
Publication restriction: The names of the applicant and complainant are not to be published. Any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant is not to be published.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 November 2015

Before:

Traill J

File Number(s):

2014/22298

HEADNOTE

[This headnote is not to be read as part of the judgment]

RKF (the applicant) was charged with two counts of aggravated indecent assault against his daughter, SF, and one count of intimidating her with the intention of causing her to fear physical harm.

SF was born in Thailand. For the majority of SF’s early life, the applicant was remanded in custody on drug charges in both Thailand and Italy, all charges of which he was later acquitted. In 2007, SF moved to Australia where she lived with the applicant’s mother. In 2009, the applicant returned to Australia after release from prison in Italy. SF did not want anything to do with the applicant but in 2011, after experiencing relationship difficulties with her grandmother, she moved to Sydney to live with him.

In 2013, the applicant went overseas and the following day, SF was admitted to hospital with liver failure. Family and Community Services were notified. The applicant returned to Australia and SF was transferred to Westmead Children’s Hospital where she underwent a liver…

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 RKF v R

Details

AGLC: RKF v The Queen [2016] NSWCCA 116
Case: [2016] NSWCCA 116
Decision Date: 15 June 2016

CaseChat Overview and Summary

The case involved a defendant, RKF, who was appealing against an interlocutory order that denied his application for a trial by a judge alone. The nature of the dispute was whether the trial judge erred in denying the application, specifically by not allowing the applicant to defend himself by all forensically available means, and by not properly balancing the need for objective community standards against the prejudice to the accused. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the trial judge failed to appropriately apply the principle that an applicant is entitled to defend himself by all forensically available means, and whether the trial judge failed to properly balance the need for objective community standards against the prejudice to the accused. The court also considered whether the trial judge erred in finding that directions to the jury could overcome any prejudice, and whether the trial judge took into account extraneous material in making his decision.

The court found that the trial judge had not adequately applied the principle that the applicant is entitled to defend himself by all forensically available means, and that the trial judge had not properly balanced the need for objective community standards against the prejudice to the accused. The court found that the trial judge erred in finding that directions to the jury could overcome any prejudice, and that the trial judge had taken into account extraneous material in making his decision. The court held that these errors amounted to a miscarriage of justice and allowed the appeal.

The court ordered that the matter be remitted to the trial court for a new trial before a different judge. The court also ordered that the applicant be granted leave to appeal to the High Court from any decision made at the new trial.

Orders