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SA v The King

SA v The King

Case [2024] NSWCCA 50 24 April 2024

Appeal

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SA v R [2024] NSWCCA 50
Hearing dates: 1 March 2024
Date of orders: 24 April 2024
Decision date: 24 April 2024
Before: Ward P at [1]
Davies J at [2]
Garling J at [55]
Decision:
(1) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – three counts of indecent assault, sexual assault and sexual touching against younger sister – complainant aged between 12 and 17 years – where complainant’s police statement disclosed earlier instances of abuse at age nine – admitted as context evidence at trial – where evidence went to complainant’s continuing fear and delay in complaint – whether trial judge erred by admitting part of the context evidence involving fellatio – whether act of fellatio exceeded gravity of the counts of indictment because of the complainant’s young age – where no submission to that effect was made at trial – where ground of appeal alleged error when no objection taken at trial as to portions of context evidence – application of r 4.15 of the Criminal Appeal Rules – trial judge properly considered the test in s 137 of the Evidence Act – where proper anti-tendency directions were given – no miscarriage of justice demonstrated – no error in admitting the context evidence – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J, 61KC, 61M, 66A
Evidence Act 1995 (NSW) s 137
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Flood-Smith v R [2018] NSWCCA 103
Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McIlwraith v R [2020] NSWCCA 274
Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Blick [2000] NSWCCA 51; (2001) 111 A Crim R 326
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:
Nil

Category: Principal judgment
Parties: SA (Appellant)
The King (Respondent)
Representation:
Counsel:
B Levet (Appellant)
J Styles (Respondent)
Solicitors:
Algalele & Co Solicitors (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): 2020/256648
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

22 September 2023

Before:

Culver DCJ

File Number(s):

2020/256648

HEADNOTE

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

On 16 June 2023, SA (the appellant) was convicted by a jury of three counts of indecent assault, aggravated sexual intercourse and unlawful sexual touching. He was sentenced to imprisonment for 6 years 6 months with a non-parole period of 4 years 4 months expiring 15 October…

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 SA v The King

Details

AGLC: SA v The King [2024] NSWCCA 50
Case: [2024] NSWCCA 50
Decision Date: 24 April 2024

CaseChat Overview and Summary

The appellant in this case was convicted on three counts of indecent assault, sexual assault, and sexual touching against his younger sister. The offences were committed over a period when the complainant was aged between 12 and 17 years. The trial included context evidence from the complainant's police statement, which disclosed earlier instances of abuse when she was nine years old. This evidence was admitted to explain the complainant's continuing fear and the delay in making the complaint. The appellant appealed against his conviction, arguing that the trial judge erred by admitting part of the context evidence involving an act of fellatio, contending that the act's gravity exceeded that of the counts of indictment due to the complainant's young age. However, no specific objection was made at trial regarding the portions of the context evidence.

The court was required to determine whether the trial judge erred in admitting the context evidence and if this constituted a miscarriage of justice. The appeal hinged on whether the trial judge properly considered the statutory test in s 137 of the Evidence Act and whether proper anti-tendency directions were given. Additionally, the court examined the application of r 4.15 of the Criminal Appeal Rules, which requires specific objections to be made at trial. The court found that the trial judge had applied the correct legal test and that the evidence was properly admitted. The appellant had failed to object to the portions of the context evidence at trial, and thus, the court held that the grounds of appeal were not valid. The appeal was dismissed as there was no demonstrated miscarriage of justice and no error in admitting the context evidence.

The appeal was dismissed, and the conviction was upheld. The court's decision was based on the proper application of the Evidence Act and the Criminal Appeal Rules, as well as the trial judge's consideration of the context evidence and issuance of appropriate directions. The court concluded that the admission of the context evidence did not result in a miscarriage of justice and that the appellant's failure to object at trial precluded the grounds of appeal. The final orders confirmed the dismissal of the appeal and the maintenance of the appellant's conviction on all counts.

Orders