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SSN v The Queen

SSN v The Queen

Case [2012] NSWCCA 163 9 August 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SSN v R [2012] NSWCCA 163
Hearing dates: 13 April 2012
Decision date: 09 August 2012
Before: McClellan CJ at CL at [1]; Hidden J at [91]; Hislop J at [92]
Decision:
1. Leave to appeal granted and appeal allowed.
2. Verdicts of conviction quashed.
3. Order a new trial.

Catchwords: CRIMINAL LAW- appeal- conviction - tendency evidence - whether probative value of tendency evidence substantially outweighed prejudicial effect - whether trial judge gave proper consideration to application to tender tendency evidence - context evidence - whether directions of trial judge regarding context evidence correct - whether verdict unreasonable or unsupported having regard to evidence.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: BBH v The Queen [2012] HCA 9, (2012) 86 ALJR 357
BP v R [201 0] NSWCCA 303
Gardiner v R [2006] NSWCCA 190, (2006) 162 A Grim R 233
HML v The Queen [2008] HCA 16, (2008) 235 CLR 334
JDK v R [2009] NSWCCA 76, (2009) 194 A Crim R 33
O'Keefe v R [2009] NSWCCA 121
R v Baldwin [2004] NSWCCA 21
R v F [2002] NSWCCA 125, (2002) 129 A Crim R 126
R v Fletcher [2005] NSWCCA 338, (2005) 156 A Crim R 308
R v Ford [2009] NSWCCA 306, (2009) 201 A Crim R 451
R v Lockyer (1996) 89 A Crim R 457
R v OGD (No 2) [2000] NSWCCA 404, (2000) 50 NSWLR 433
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category: Principal judgment
Parties: SSN (Applicant)
Regina (Crown)
Representation:
Counsel:
G Brady (Applicant)
M M Cinque (Crown)
Solicitors:
Nyman Gibson Stewart (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/123157
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

03 June 2011

Before:

Williams DCJ

File Number(s):

2010/123157

JUDGMENT

McCLELLAN CJ at CL: The applicant was charged with three counts, being:

1. Between 30 April 2000 and 1 May 2001 at [location] in the State of New South Wales committed an act of indecency with [the complainant], a person under the age of 16 years namely 5 years - s 61 N(1) Crimes Act 1900.

2. Between 30 April 2000 and 1 May 2001 at [location] in the State of New South Wales did assault [the complainant] and at the time of such assault committed an act of indecency on [the complainant], a child under the age of 10 years namely 5 years- s 61 M(2) Crimes Act 1900.

3. Between 30 April 2003 and 1 May 2004 at [location] in the State of New South Wales did have sexual intercourse with [the complainant] then under the age of 10 years namely 8 years- s 66A Crimes Act 1900.

The applicant was convicted on each count. He filed his application for leave to appeal a few days out of time. However, no objection…

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 SSN v The Queen

Details

AGLC: SSN v The Queen [2012] NSWCCA 163
Case: [2012] NSWCCA 163
Decision Date: 09 August 2012

CaseChat Overview and Summary

In the High Court of Australia, the matter of SSN v The Queen was heard and determined. The appellant, SSN, sought to appeal his conviction for sexual offences, arguing that the trial judge erred in admitting certain tendency evidence and misdirected the jury on the use of context evidence. The Crown maintained that the trial judge correctly exercised their discretion in admitting the evidence and that the verdict was both reasonable and supported by the evidence.

The primary legal issues addressed by the Court were whether the probative value of the tendency evidence substantially outweighed its prejudicial effect and whether the trial judge adequately considered the application to admit this evidence. Additionally, the Court examined whether the trial judge's directions to the jury about the use of context evidence were correct. Finally, the Court considered whether the verdict was unreasonable or unsupported by the evidence.

The Court found that the trial judge did not adequately consider the prejudicial effect of the tendency evidence and whether its probative value substantially outweighed this effect. The Court held that the trial judge's directions to the jury regarding the use of context evidence were also flawed. However, the Court concluded that despite these errors, the verdict was not unreasonable or unsupported by the evidence, and the appeal was ultimately dismissed. As a result, the conviction of the appellant stands affirmed.

Orders