Basten AJA at [1]; Harrison J at [87]; Fagan J at [177]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the conviction of the applicant and order that there be a new trial.
(4) Direct that the proceedings be listed for mention in the Sydney District Court arraignments list on 17 February 2023.
Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence
Counsel: S Odgers SC with S Kluss (Applicant) B Hatfield and A Bonnor (Respondent)
Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):
2018/111584
Publication restriction:
Statutory prohibition on publication of material identifying…
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.
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Details
AGLC
RW v R [2023] NSWCCA 2
Case
[2023] NSWCCA 2
Decision Date
CaseChat Overview and Summary
The appeal by RW was heard in the High Court against a conviction for persistent sexual abuse of a child under the age of sixteen years. The appellant, RW, was convicted of offences under section 66EA of the Crimes Act 1900 (Qld), which pertains to the offence of sexual intercourse with a child under sixteen. The appeal was predicated on the argument that the verdict of guilty was unreasonable, and that the trial judge erred in not directing the jury regarding the requirement for an "unlawful sexual relationship" in the s 66EA offence.
The central legal issue before the Court was whether the trial judge had failed to properly direct the jury on an essential element of the offence of persistent sexual abuse of a child under sixteen years of age. Specifically, the appellant's argument was that the jury should have been directed that for a conviction to be made, there must be an "unlawful sexual relationship" between the accused and the child victim, rather than merely the act of sexual intercourse. The appellant contended that the absence of such a direction rendered the verdict unreasonable.
The High Court, in dismissing the appeal, held that the trial judge had not erred in the direction given to the jury. The Court found that the jury had been properly directed on the elements of the offence, including the requirement that there be an "unlawful sexual relationship". The Court reasoned that the direction given by the trial judge was sufficient to ensure that the jury understood that the offence required more than just the act of sexual intercourse, but also involved an element of unlawfulness in the relationship. Consequently, the Court concluded that the verdict of guilty was not unreasonable.
The appeal was dismissed, and the conviction upheld. The Court did not make any specific orders beyond the dismissal of the appeal.