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Thornton v R

Thornton v R

Case [2017] NSWCCA 86 3 May 2017

Criminal Liability

Appeal

Jurisdiction

Admissibility of Evidence

Res Judicata

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Thornton v R [2017] NSWCCA 86
Hearing dates: 15 November 2016
Decision date: 03 May 2017
Before: Ward JA at [1];
Campbell J at [224];
N Adams J at [225]
Decision:
1. Insofar as leave is necessary, grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW – conviction appeal – assault committing act of indecency on child under 16 – trial heard by judge alone – whether trial judge did not consider or properly consider the defence case – whether judge did not give adequate reasons for the verdicts – whether verdicts unreasonable and cannot be supported having regard to evidence – whether the possibility that complainant conflated identity of appellant with that of her mother’s partner, against whom she made very similar allegations, should have given rise to reasonable doubt on part of trial judge – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), s 133(2)
Cases Cited: Atai v R [2014] NSWCCA 210
Cutajar v R [2016] NSWCCA 222
Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Parton v R [2016] NSWCCA 291
R v Prasad (1979) 23 SASR 161
R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293
Siafakas v R [2016] NSWCCA 100
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: Robert John Thornton (Appellant)
Regina (Respondent)
Representation:
Counsel:
Ms M Avenell (Appellant)
Ms S Dowling SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/00380049
Publication restriction: Restriction on identification of victim
Decision under appeal

Court or tribunal:

District Court at Penrith

Jurisdiction:

Criminal

Date of Decision:

9 April 2015

Before:

English DCJ

File Number(s):

2013/00380049

Judgment

WARD JA: The appellant, Robert John Thornton, was found guilty on 9 April 2015 of two counts of aggravated indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW), following a judge alone trial in the District Court. He was found not guilty of one count of attempted sexual intercourse with a person under 10 (contrary to s 66B of the Crimes Act). He had pleaded not guilty to each of the charges. The complainant (M) was the same for all counts.
On 10 September 2015, the appellant was sentenced in relation to…

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 Thornton v R

Details

AGLC: Thornton v The Queen [2017] NSWCCA 86
Case: [2017] NSWCCA 86
Decision Date: 03 May 2017

CaseChat Overview and Summary

In this case, the appellant, Thornton, appealed against his conviction for committing an act of indecency on a child under 16 years of age. The case was heard in the High Court of Australia. The dispute centred around whether the trial judge had failed to consider or adequately consider the defence case, and if the judge had given adequate reasons for the verdicts. Additionally, the appeal questioned whether the verdicts were unreasonable and could not be supported by the evidence. The possibility that the complainant had conflated the identity of the appellant with that of her mother's partner, against whom she made very similar allegations, was also considered as a factor that should have given rise to reasonable doubt.

The legal issues the court had to decide included whether the trial judge failed to consider or properly consider the defence case, and whether the judge did not provide adequate reasons for the verdicts. The court also needed to determine if the verdicts were unreasonable and could not be supported by the evidence. Furthermore, the court had to consider whether the possibility of the complainant conflating the identity of the appellant with that of her mother's partner should have given rise to reasonable doubt on the part of the trial judge.

The High Court found that there was no miscarriage of justice in the trial process. The court held that the trial judge had adequately considered the defence case and provided sufficient reasons for the verdicts. The court found that the verdicts were reasonable and supported by the evidence, and that the possibility of the complainant conflating identities did not give rise to reasonable doubt. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the appeal against the appellant's conviction for committing an act of indecency on a child under 16 years of age. The court found no error in the trial process and upheld the conviction.

Orders