Sudath v The Queen - [2008] NSWCCA 207

New South Wales
Court of Criminal Appeal

CITATION: Sudath v R [2008] NSWCCA 207
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 July 2008

JUDGMENT DATE:
9 September 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 79; Fullerton J at 80

DECISION: 1. Appeal against conviction dismissed
2. Leave to appeal sentence granted
3. Appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Common assault – Sexual assault – Domestic violence – Prescribed sexual offence proceedings – Whether judge erred in allowing alternative arrangements for giving of evidence by complainant – Whether judge erred in declining to give a direction on circumstantial evidence – Whether verdict of jury unreasonable in the circumstances – Whether fresh evidence obtained after proceedings evinced a miscarriage of justice – CRIMINAL LAW – Appeal against sentence – Whether sentence in respect of common assault count excessive – Whether accumulation of sentences inappropriate considering Pearce v R

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986 (NSW)

CATEGORY: Principal judgment

CASES CITED: Craig v The King (1933) 49 CLR 429
House v The King (1936) 55 CLR 499 at 504-505
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Plomp v The Queen (1963) 110 CLR 234
R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69

PARTIES: Kondasinghe Aron Sudath (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/2978

COUNSEL: G D Wendler (Appellant)
P G Ingram (Crown)

SOLICITORS: Van Houten Law (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0266

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 21 September 2007

2007/2978

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J
TUESDAY, 9 SEPTEMBER 2008

SUDATH, Kondasinghe Aron v R

Judgment

1 McCLELLAN CJ at CL: The appellant was tried and convicted by a jury of two counts as follows:

Count 1: On or about 29 April 2005 at Baulkham Hills in the State of New South Wales, did have sexual intercourse with LAA without her consent, knowing she was not consenting.

This count alleged a contravention of s 61 I of the Crimes Act 1900 and carries a maximum penalty of imprisonment for a term of 14 years. A standard non-parole period of 7 years is provided by Item 7 of the Table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

Count 2: On 30 April 2005 at Baulkham Hills in the State of New South Wales, did assault LAA.

Crimes Act

2 The appellant was sentenced to the following terms of imprisonment:

In respect of count 1: to a non-parole period of 3 years to commence on 14 March 2008 and expire on 13 March…

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 Sudath v The Queen

Details

AGLC: Sudath v The Queen [2008] NSWCCA 207
Case: [2008] NSWCCA 207
Decision Date: 9 September 2008

CaseChat Overview and Summary

Sudath was convicted by a jury of two counts of common assault and one count of sexual assault, each involving the complainant. The respondent, The Queen, appealed against both the conviction and the sentence. The appeal raised several issues, including whether the judge had erred in allowing the complainant to give evidence under alternative arrangements, whether the judge should have directed the jury on circumstantial evidence, whether the verdict was unreasonable in the circumstances, and whether fresh evidence obtained after the proceedings suggested a miscarriage of justice. Additionally, the appeal addressed whether the sentence was excessive and whether the accumulation of sentences was inappropriate.

The court examined the issues sequentially, starting with the judge's decision to permit the complainant to give evidence under alternative arrangements. It was determined that the judge had acted within their discretion in making this decision, as it was deemed to be in the best interests of the complainant. The court also found that the judge had not erred in declining to give a direction on circumstantial evidence, as the evidence was not purely circumstantial but rather a combination of direct and circumstantial evidence. The jury's verdict was deemed reasonable given the evidence presented, and the fresh evidence obtained after the proceedings did not suggest a miscarriage of justice. The court further examined the sentence imposed, determining that while the sentence for the common assault count was at the higher end of the scale, it was not excessive given the circumstances of the case. The accumulation of sentences was also deemed appropriate.

Ultimately, the appeal against conviction was dismissed, and the appeal against sentence was allowed in part. The sentence for the common assault count was reduced, and the appellant's sentence was recalculated to reflect the new total.

Orders