Stevenson v The Queen; Waters v The Queen - [2020] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stevenson v R; Waters v R [2020] NSWCCA 58
Hearing dates: 25 March 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Before: Harrison J at [1]
Hamill J at [2]
Wilson J at [30]
Decision:
Kurt Stevenson:
(1) Extend time for the filing of the notice of appeal.
(2) Grant leave to appeal in relation to ground 4.
(3) Allow the appeal.
(4) Set aside the convictions on counts 3A, 4A and 6A.
(5) Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions.
(6) Affirm the convictions on counts 1A, 2A and 5A.
(7) Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on counts 1A, 2A and 5A.
(8) Bail is refused.
(9) The case is listed for mention before the District Court in Sydney on 1 May 2020.
Andrew Waters:
(1) Extend time for the filing of the notice of appeal.
(2) Grant leave to appeal in relation to ground 4.
(3) Allow the appeal.
(4) Set aside the convictions on counts 2A, 3A, 4A and 5A.
(5) Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions.
(6) Affirm the convictions on count 6A.
(7) Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on count 6A.
(8) Bail is refused.
(9) The case is listed for mention before the District Court in Sydney on 1 May 2020.
Catchwords:
CRIMINAL LAW – sexual offences alleged against multiple accused – confusion as to basis of liability – principal in the second degree – joint criminal enterprise – where earlier decision of the Court quashed a co-accused’s conviction – no challenge to earlier decision – concession by Director of Public Prosecutions – multiple offences – appeal upheld in relation to convictions on some counts – convictions on other counts confirmed – aggregate sentence quashed – matter remitted to District Court for re-sentencing

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Carlyle-Watson v R [2019] NSWCCA 226 (restricted)

Category: Principal judgment
Parties: Andrew Waters (Applicant)
Kurt Stevenson (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Waters)
S Fraser (Stevenson)
C Curtis (Regina)
Solicitors:
Ross Hill & Associates Solicitors (Waters)
McGirr Lawyers (Stevenson)
Director of Public Prosecutions (Regina)

File Number(s): 2015/300972; 2015/301034
Publication restriction: Non-publication orders over identification of the complainant pursuant to s 578A of the Crimes Act 1900 (NSW) and name of ML pursuant to s 15A Children (Criminal Proceedings) Act 1987.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 January 2018

Before:

Norton SC DCJ

File Number(s):

2015/300972; 2015/301034

Judgment

HARRISON J: I agree with Hamill J.
HAMILL J: Kurt Stevenson and Andrew Waters seek leave to appeal against their…

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.

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Details

Case: [2020] NSWCCA 58
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the recent case of Stevenson v The Queen and Waters v The Queen, the appellants were convicted of a series of sexual offences. The case was heard in the High Court of Australia, which was asked to determine the validity of the convictions and the sentences imposed. The appeal raised questions about the principles of criminal liability, particularly in relation to the concepts of principal in the second degree and joint criminal enterprise.

The legal issues before the court involved the appellants' convictions under various counts of sexual offences, including whether the convictions were properly based on the evidence presented, and whether the sentences imposed were appropriate. One significant issue was whether the convictions could stand following the quashing of a co-accused's conviction in an earlier decision by the Court. Additionally, the court examined whether the Director of Public Prosecutions had conceded to the quashing of some convictions.

The court found that while some convictions were properly upheld, others were not supported by the evidence. Consequently, the convictions on certain counts were quashed, and the appeal was upheld in relation to those counts. However, the court confirmed the convictions on other counts. The aggregate sentence imposed by the trial court was quashed, and the matter was remitted to the District Court for re-sentencing. The court's decision underscored the importance of ensuring that convictions are based on sufficient evidence and that sentences are proportionate to the offences committed.

Orders