SC v The King - [2023] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SC v R [2023] NSWCCA 111
Hearing dates: 17 May 2023
Date of orders: 17 May 2023
Decision date: 17 May 2023
Before: Garling J at [1]
Ierace J at [15]
McNaughton J at [16]
Decision:
See [14]

Catchwords:
CRIME — appeals — appeal against conviction — where Crown conceded that the trial judge had failed to follow the statutory requirements set out in s 13(5) Evidence Act 1995 — where Crown accordingly accepted that ground 1 in the appeal had been made out — appeal allowed — convictions quashed — retrial ordered — no need to consider any of the other grounds of appeal

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
MK v Regina [2014] NSWCCA 274
SH v Regina [2012] NSWCCA 79

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: SC (App)
The Crown (Resp)
Representation:
Counsel:
M Johnston / G Lewer (App)
A Bonner (Resp)
Solicitors:
Legal Aid (NSW) (App)
The Director of Public Prosecutions (Resp)

File Number(s): 2018/303573
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 March 2021

Before:

Norrish QC DCJ

File Number(s):

2018/303573

EX TEMPORE JUDGMENT

GARLING J: The applicant seeks an extension of time for leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 against his conviction for 11 offences of a sexual nature against two complainants, both his daughters, on 12 March 2021 following a trial before Norrish QC DCJ and a jury in the District Court.
There were 18 counts on the Indictment which was presented in the District Court, to all of which the applicant pleaded not guilty. The jury was unable to agree on its verdict with respect to two of the counts. The Director of Public Prosecutions has directed that there be no further proceedings in respect of those two counts. Of the remaining 16 counts, the applicant was found not guilty of 5 counts and guilty of 11 counts.
In respect of the principal complainant, to whom the pseudonym “GC” was given and in respect of whom there is a statutory prohibition, by reason of s 15A of the Children (Criminal Proceedings) Act 1987 and the Crimes Act 1900, on the publication of the complainant’s name and any matter which could identify her, the Judge dealing with pre-trial matters (Shead SC DCJ) found GC not competent to give sworn evidence. The lack of competence arose because GC (who was 20 years old at the time of the pre-trial hearing) suffered from an autism spectrum disorder and also had a moderate intellectual disability which indicated that she had a mental age of about 7 years.
The first ground of appeal challenged the admissibility of the evidence of GC upon the basis that prior to her evidence being taken during a pre-recorded session, Shead SC DCJ had not, having…

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 SC v The King

Details

AGLC: SC v The King [2023] NSWCCA 111
Case: [2023] NSWCCA 111
Decision Date: 17 May 2023

CaseChat Overview and Summary

The case involved the appellant, who had been convicted of an offence and was appealing against his conviction. The appeal was heard by the Supreme Court, which considered the Crown's concession that the trial judge had not complied with statutory requirements outlined in section 13(5) of the Evidence Act 1995. The central issue before the court was whether the trial judge's failure to follow these statutory requirements warranted a retrial of the case. Given the Crown's concession that the statutory requirements had not been met, the court focused on whether this breach necessitated the quashing of the appellant's conviction and the ordering of a new trial.

The court examined the statutory framework and determined that the failure to adhere to section 13(5) of the Evidence Act 1995 was indeed a significant procedural error. This section stipulates specific procedures that must be followed in trials involving certain types of evidence, and its non-compliance was deemed critical enough to impact the fairness of the trial. As a result, the court concluded that the appellant's conviction could not stand, and the appeal was allowed. The court quashed the convictions and ordered a retrial to ensure that all legal procedures were properly followed. Given the outcome of the appeal on the first ground, the court did not need to address the other grounds of appeal raised by the appellant.

Orders