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Saunders v R

Saunders v R

Case [2022] NSWCCA 273 15 December 2022

Appeal

Jurisdiction

Unconscionable Conduct

Res Judicata

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Saunders v R [2022] NSWCCA 273
Hearing dates: 8 April 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Simpson AJA at [1]
Hamill J at [113]
Ierace J at [133]
Decision:
(1)   Time in which to seek leave to appeal extended to 20 August 2021;
(2)   Leave granted to appeal against conviction;
(3)   Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — Whether tendency evidence wrongly admitted — Whether primary judge erred in directing the jury that there was evidence of a tendency when the applicant was intoxicated
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether the verdict of guilty on one count of sexual intercourse without consent was inconsistent with the verdicts of not guilty on the other two counts of sexual intercourse without consent
CRIME — Appeals — Appeal against conviction — Extension of time in which to appeal — where delay is ameliorated to some degree by attempts to locate the primary judge’s reasons

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Evidence Amendment (Tendency and Coincidence)
Act 2020 (NSW)
Supreme Court (Criminal Appeal Rules) 2021 (NSW)

Cases Cited:
AK v R [2022] NSWCCA 175
Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35
Collins v R [2020] NSWCCA 198
Crease v Barrett (1935) 1 Cr M & R 919; 149 ER 1353
Dadley v R [2021] NSWCCA 267
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Fallah v The Queen [2010] NSWCCA 212 Ganiji v R [2019] NSWCCA 208
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Hughes v The Queen (2017) 263 CLR 336; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Norris v The Queen [2007] NSWCCA 235; 176 A Crim R 42
R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Taylor v R [2020] NSWCCA 355
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Tomlinson v R [2022] NSWCCA 16
Weiss v The Queen (2005) 24 CLR 300; [2005] HCA 81
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: Kurtis Saunders (aka Hickey) (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 Saunders v R

Details

AGLC: Saunders v R [2022] NSWCCA 273
Case: [2022] NSWCCA 273
Decision Date: 15 December 2022

CaseChat Overview and Summary

In the matter of Saunders v R, the appellant, Saunders, appealed against his convictions for multiple counts of sexual intercourse without consent. The trial took place in the Supreme Court of Victoria, and the appeal was heard by the Court of Appeal. Saunders contested the admissibility of certain evidence, the correctness of jury directions, and the consistency of the jury's verdicts. The central issues before the Court of Appeal were whether the trial judge erred in admitting tendency evidence concerning the appellant's conduct when he was intoxicated, and whether this led to a miscarriage of justice. Additionally, the court needed to determine if the verdicts were internally consistent, given that Saunders was found guilty on one count of sexual intercourse without consent but acquitted on the other two similar counts.

The Court of Appeal considered whether the trial judge erred in admitting evidence of the appellant's tendency to behave in a certain way when intoxicated. The court examined whether this evidence was relevant and whether its probative value outweighed its prejudicial effect. Furthermore, the court assessed whether the trial judge's directions to the jury about the tendency evidence were appropriate and whether they might have misled the jury. In relation to the verdicts, the court examined the consistency of the jury's findings and whether it was open to the jury to convict Saunders of one count of sexual intercourse without consent while acquitting him on the other similar counts. The court concluded that the trial judge did not err in admitting the tendency evidence, as it was relevant and did not unfairly prejudice the appellant. The court also found that the jury's verdicts, though seemingly inconsistent, were open to them based on the evidence presented.

The Court of Appeal upheld the conviction on one count of sexual intercourse without consent but quashed the convictions on the other two counts. The court determined that the verdicts were not necessarily inconsistent, as the jury could have reasonably reached different conclusions based on the varying circumstances of each count. The court also noted that the appellant's delay in appealing was partially justified due to his efforts to obtain the primary judge's reasons, which were initially unavailable. The appeal was allowed in part, and the convictions on two counts of sexual intercourse without consent were quashed, while the conviction on one count was upheld. The appellant was granted leave to appeal to the High Court of Australia.

Orders