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Sivell v R

Sivell v R

Case [2019] NSWCCA 77 17 April 2019

Incompetence of Counsel

Fresh Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sivell v R [2019] NSWCCA 77
Hearing dates: 5 September 2018
Date of orders: 17 April 2019
Decision date: 17 April 2019
Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Beech-Jones J at [3]
Decision:
(1)   The applicant’s notice of motion filed 17 September 2018 be dismissed;

(2)   Leave to appeal in respect of grounds 2 and 3 of the appeal against conviction be refused;
(3)   The appeal against conviction be dismissed;
(4)   The applicant be granted an extension of time in which to seek leave to appeal against his sentence until 7 September 2018;
(5)   Grant leave to appeal against sentence but the appeal be dismissed.
Catchwords: CRIME – Appeal against conviction – Applicant convicted of 19 sexual offences against children – Apprehended bias – Trial judge’s consideration of applicant’s criminal history – Trial judge’s treatment of one complainant during cross-examination – No apprehension arises – Incompetence of Counsel – Failure to subpoena and “track down” witnesses – No miscarriage of justice – Fresh evidence – Request for Court to issue summonses to witnesses – Whether anticipated evidence admissible – Evidence of past medical procedure – Whether anticipated evidence cast doubt on conviction – No evidence casting doubt on guilt of applicant – Appeal against sentence – Sentence not manifestly excessive.
Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Ali v R [2005] HCA 8; 214 ALR 1
CUR24 v DPP [2012] NSWCA 65
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Mathews v R [2013] NSWCCA 187
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
MRW v R [2011] NSWCCA 260
Norman v R [2012] NSWCCA 230
Nudd v R [2006] HCA 9
Obeid v R [2017] NSWCCA 221
R v E (2005) 93 SASR 20; [2005] SASC 332
R v M.A.K.; R v M.S.K. [2006] NSWCCA 381
R v Saleam (1989) 16 NSWLR 14
R v Sivell [2009] NSWCCA 286
Ratten v R [1974] HCA 35; 131 CLR 510
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
TKWJ v R [2002] HCA 46; 212 CLR 124
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: Andrew John Sivell (Applicant)
The Crown (Respondent)
Representation:
Counsel:
Self-Represented (Applicant)
Ms S Kluss (for the Applicant on the Sentence Appeal)
Mr E Balodis (Respondent)
Solicitors:
Self-Represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/302138, 2014/189645
Publication restriction: Non-publication order not issued, but restriction on the identification of the child victims of sexual offences the subject of the appeal (pursuant to Crimes Act 1900, s 578A and Children (Criminal Proceedings) Act 1987, s 15A)
Decision under appeal

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 Sivell v R

Details

AGLC: Sivell v The Queen [2019] NSWCCA 77
Case: [2019] NSWCCA 77
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of Sivell v R involved the applicant, Sivell, appealing his conviction and sentence for 19 sexual offences against children. The appeal was heard in the High Court of Australia, which had to determine if the trial judge's conduct, the competency of counsel, and the potential for fresh evidence warranted a reversal of the conviction or sentence. The applicant argued that the trial judge was biased, that his counsel was incompetent, and that fresh evidence could cast doubt on his guilt.

The court was required to assess whether the trial judge's consideration of the applicant's criminal history and his treatment of a complainant during cross-examination amounted to apprehended bias. Additionally, the court had to consider whether the applicant's counsel was incompetent for failing to subpoena and locate witnesses and if this incompetence led to a miscarriage of justice. The court also had to determine whether the fresh evidence, which included a request for summonses to witnesses and the potential admissibility of past medical procedure evidence, could cast doubt on the applicant's conviction.

The High Court found that there was no apprehension of bias in the trial judge's actions, nor was the applicant's counsel incompetent. The court held that the fresh evidence did not cast doubt on the applicant's guilt, and the sentence was not manifestly excessive. Therefore, the appeal against conviction and sentence was dismissed. The court concluded that the trial had been conducted fairly, and the evidence was sufficient to support the conviction. The trial judge's handling of the case and the competency of counsel did not lead to a miscarriage of justice, and the fresh evidence did not undermine the applicant's guilt.

Orders