Roos v R

Case [2019] NSWCCA 67 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Roos v R [2019] NSWCCA 67
Hearing dates: 25 February 2019
Decision date: 29 March 2019
Before: Gleeson JA at [1]
Harrison J at [120]
Davies J at [121]
Decision:
(1) Grant leave to appeal against conviction with respect to ground 1 and ground 2(a).

(2) Refuse leave to appeal under r 4 of the Criminal Appeal Rules (NSW) with respect of grounds 2(b), (c), (d) and (e).
(3) Dismiss the appeal.
Catchwords:
CRIMINAL LAW – child sexual offences – conviction appeal – unreasonable verdicts – whether guilty verdicts on nine counts inconsistent with acquittals on six counts – whether rational and logical basis on which jury could distinguish counts

CRIMINAL LAW – child sexual offences – conviction appeal – directions of trial judge to the jury – whether adequate Markuleski direction given – whether Liberato direction required – whether motive to lie direction required in relation to complainants– whether hearsay warning required in relation to third party’s evidence of victims’ conversation

CRIMINAL LAW – child sexual offences – conviction appeal – whether trial judge’s summing up adequately put the accused’s case to the jury
CRIMINAL LAW – child sexual offences – conviction appeal – objections and points not raised at trial – whether mis-directions and non-directions – whether judge’s summing up adequate – Criminal Appeal Rules, r 4
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M(2), 66A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), s 161
Evidence Act 1995 (NSW)
Cases Cited: ARS v R [2011] NSWCCA 266
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Dixon v R [2017] NSWCCA 299
DV v R [2017] NSWCA 276
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Greenhalgh v R [2017] NSWCCA 94
Jafary v R [2018] NSWCCA 243
Liberato v The Queen (1985) 159 CLR 507
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Palmer v R [2018] NSWCCA 205
Papakosmas v The Queen (1999) 196 CLR 297
Picken v R [2007] NSWCCA 319
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
R v Burt (2003) 140 A Crim R 555
R v G.A.R. [2003] NSWCCA 224
R v Jovanovic (1997) 98 A Crim R 1
R v Li (2003) 140 A Crim R 288
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Niass [2005] NSWCCA 120
R v Ryan (Court of Criminal Appeal (NSW), 15 April 1994, unrep)
R v Wilson (2005) 62 NSWLR 346
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Tripodina and Morabito v R (1988) 35 A Crim R 183
Walker v R [2019] NSWCCA 4
White v R [2018] NSWCCA 156
Category: Principal judgment

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 Roos v R

Details

AGLC: Roos v R [2019] NSWCCA 67
Case: [2019] NSWCCA 67
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of Roos v R involves an appeal by the respondent against his conviction and sentence for multiple child sexual offences. The appellant was found guilty by a jury of nine counts of indecent assault and one count of sexual intercourse with a child under 10 years, while being acquitted on six other counts of indecent assault. The appeal primarily contests the consistency and rationality of the jury's verdicts, the adequacy of the trial judge's directions to the jury, and the sufficiency of the summing up. The Court of Appeal was tasked with determining whether the guilty verdicts were inconsistent with the acquittals, whether the jury was adequately directed, and if the summing up appropriately presented the accused's case.

The legal issues before the Court of Appeal included whether the jury's verdicts were inconsistent and whether there was a rational and logical basis for distinguishing between the counts. The Court also considered whether the trial judge adequately directed the jury in accordance with the principles set out in Markuleski, Liberato, and whether a motive to lie direction was necessary for the complainants, and if a hearsay warning was required for third-party evidence of the victims' conversation. Furthermore, the Court examined whether the summing up adequately presented the accused's case.

The Court of Appeal found that the jury's verdicts were not unreasonable or illogical, as there was evidence to support the distinction between the counts on which the appellant was acquitted and those on which he was convicted. The Court held that the trial judge provided adequate directions to the jury, including the necessary Markuleski direction, and there was no requirement for a Liberato direction or a motive to lie direction in relation to the complainants. The Court also determined that the summing up was adequate and appropriately presented the accused's case to the jury.

As a result of the Court of Appeal's decision, the respondent's appeal was dismissed, and his convictions and sentence were upheld. The Court held that there was no basis to interfere with the jury's verdicts, the trial judge's directions, or the summing up. The Court found that the trial was conducted fairly and that the jury's verdicts were consistent with the evidence presented. The respondent's convictions and sentence were therefore affirmed.

Orders