Swain v The Queen - [2015] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Swain v R [2015] NSWCCA 176
Hearing dates: 19 June 2015
Decision date: 03 July 2015
Before: Hoeben CJ at CL at [1]
R A Hulme J at [113]
Fagan J at [114]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – sexual assault and sexual intercourse with a person under the age of 16 – applicant convicted of some offences but acquitted of others – whether the jury verdicts were inconsistent – a reasonable basis for the different verdicts established – no inconsistency – whether conviction verdicts unreasonable and incapable of being supported by the evidence – open to jury to be satisfied beyond reasonable doubt as to guilt – appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 61J(1); s 61M(2)
Criminal Procedure Act 1986 – s 166
Cases Cited: M v R [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Anderson [2001] NSWCCA 115
SKA v The Queen [2011] HCA 13; 243 CLR 400
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: Nathan Mathew Swain – Applicant
Regina – Respondent Crown
Representation:
Counsel:
J Stratton SC/M Tanevski – Applicant
Ms T Smith – Respondent Crown
Solicitors:
McGrath Dicembre & Co – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/185058
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8.4.2014

Before:

Townsden DCJ

File Number(s):

2012/185058

Judgment

HOEBEN CJ at CL:

Offences and background

The applicant stood trial at Parramatta District Court on 24 March 2014 on an indictment that contained six counts. All of the charges related to offences of a sexual nature alleged to have been committed by the applicant (aged 38 years) on the complainant JP when she was 14 and 15 years old. The complainant's family and the applicant's family lived in the same street and had been close family friends for a number of years. The complainant's father and the applicant worked together.

The six charges relate to two separate incidents. Counts 1 - 3 related to what can be referred to as the "shower incident" and occurred at the complainant's home. The remaining counts (4 - 6) relate to a subsequent incident which can be referred to as the "Boxing Day sleep over incident" which allegedly occurred at the applicant's home.
After deliberating for just under a day on 8 April 2014, the jury found the applicant guilty of the charges which related to the shower incident but not guilty of the Boxing Day sleep over counts.
The counts brought against the applicant were as follows:

Count 1 – Between 1 August 2011 and 30 September 2011 at Ruse in the State of New South Wales did assault the complainant, a person under the age of 16, namely 15 years, and at the time of such…

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 Swain v The Queen

Details

AGLC: Swain v The Queen [2015] NSWCCA 176
Case: [2015] NSWCCA 176
Decision Date: 03 July 2015

CaseChat Overview and Summary

The appellant, Swain, appealed against his conviction for sexual assault and sexual intercourse with a person under the age of 16. The jury returned a verdict of guilty in relation to some offences, while acquitting him of others. The central issue before the court was whether the jury's verdicts were inconsistent and, if so, whether the guilty verdicts were unreasonable and incapable of being supported by the evidence. The court examined the evidence presented and the jury's assessment of it, finding that the verdicts were not inconsistent and that there was a reasonable basis for the differing outcomes.

The court reasoned that the jury, having heard all the evidence, was in the best position to assess the credibility of the witnesses and the weight to be given to their testimony. The court further held that it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant in relation to the offences for which he was convicted, while acquitting him of the other offences. The court rejected the appellant's argument that the verdicts were unreasonable, emphasising the importance of the jury's role in determining guilt based on the evidence before them.

Given the above, the court found that the appellant's appeal had no reasonable prospect of success. The court dismissed the appeal and affirmed the conviction and sentence imposed by the trial court. The appellant's conviction for sexual assault and sexual intercourse with a person under the age of 16 was therefore upheld.

Orders