RO v R

Case [2013] NSWCCA 162 9 July 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RO v R [2013] NSWCCA 162
Hearing dates: 22 May 2013
Decision date: 09 July 2013
Before: Hoeben CJ at CL at [1]
Rothman J at [116]
McCallum J at [128]
Decision:
Leave to appeal with respect to the conviction and sentence appeals granted. Appeals dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - appellant charged with eight counts of sexual intercourse and indecent assault on a person under 16 years of age - appellant found guilty of two counts and not guilty of five counts with a failure to agree in respect of one count - whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence - test to be satisfied in order for appeal to succeed - corroborative evidence supporting the complainant - difficulties with evidence of complainant - conviction appeal should be dismissed - sentence appeal - appellant step-father of complainant - whether open to sentencing judge to find "substantial" harm suffered by complainant in the absence of medical evidence to that effect - whether level of criminality properly assessed - whether sentence manifestly excessive - whether the extent of accumulation appropriate - no error demonstrated.
Legislation Cited: Crimes Act 1900 - s61M(1)
Crimes (Sentencing Procedure) Act 1999 - s21A, s21A(2)(g)
Criminal Appeal Act 1912 (NSW) - s6(1)
Cases Cited: Couloumbis v R [2012] NSWCCA 264
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282 at [37], [47]
R v Gebrail (NSWCCA 18 November 1994)
R v Hayek [2010] NSWCCA 139
R v Morgan (1993) 70 A Crim R 368
R v RTGS [2005] NSWCCA 293
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: RO - Applicant
Regina - Respondent Crown
Representation: Counsel:
Ms M Avenell - Applicant
Ms J Baly - Respondent Crown
Solicitors:

File Number(s): 2009/260975
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-03 00:00:00

Before:

Armitage DCJ

File Number(s):

2009/260975

Judgment

HOEBEN CJ at CL: Between 7 and 21 May 2012 the applicant was tried before Armitage DCJ and a jury on an indictment containing eight counts.

Count 1: Between 21 August and 7 September 1994 at Wentworth Falls the applicant indecently assaulted KJ, then under the age of 16, contrary to s61M(1) Crimes Act 1900.

Count 2: Between 1 January and 31 May 1995 at Wentworth Falls the applicant indecently assaulted KJ, then under the age of 16, contrary to s61M(1) Crimes Act 1900.

Count 3: Between 1 January and 31 May 1995 at Wentworth Falls the applicant…

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 RO v R

Details

AGLC: RO v The Queen [2013] NSWCCA 162
Case: [2013] NSWCCA 162
Decision Date: 09 July 2013

CaseChat Overview and Summary

In the matter of RO v R, the appellant, the step-father of the complainant, appealed against his conviction on two counts of sexual intercourse and indecent assault, and against his sentence. The trial involved eight counts of sexual intercourse and indecent assault on a person under 16 years of age, with the jury finding the appellant guilty of two counts, not guilty of five counts, and failing to agree on one count. The appeal against the conviction centred on the sufficiency of the evidence, specifically whether the jury's verdicts were unreasonable and unsupported by the evidence. The court examined the criteria required for a conviction appeal to succeed, considering the corroborative evidence supporting the complainant, as well as the difficulties inherent in the complainant's evidence. The court concluded that the jury's verdicts were reasonable and supported by the evidence, dismissing the conviction appeal. Regarding the sentence appeal, the court evaluated whether the sentencing judge erred in finding "substantial" harm suffered by the complainant without medical evidence, assessing the level of criminality, and determining the appropriateness of the sentence length and accumulation. The court found no demonstrated error in the sentencing judge's decision, affirming the sentence.

Orders