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TWM v The Queen

TWM v The Queen

Case [2018] NSWCCA 276 4 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: TWM v R [2018] NSWCCA 276
Hearing dates: 20 April 2018
Date of orders: 04 December 2018
Decision date: 04 December 2018
Before: Fullerton J at [1];
Davies J at [70];
N Adams J at [71]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against conviction – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty returned on seven counts and verdicts of not guilty on three counts – significance of acquittals when considering reasonableness of guilty verdicts – significance of jury’s rejection of complainant’s evidence on one count on the assessment of reliability in respect of other counts – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – whether verdicts unreasonable – whether rational basis existed for the difference in the verdicts returned
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61O(2), 66A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases Cited: A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MC v R [2017] NSWCCA 274
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Merrick v R [2017] NSWCCA 264
R v Jefferies [1969] 1 QB 120
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Rowe [1955] 1 QB 573
R v Stringer [2000] NSWCCA 293
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Sen v The Queen (1991) 30 FCR 173
Stanford v R [2018] NSWCCA 249
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category: Principal judgment
Parties: TWM (Applicant)
The Crown (Respondent)
Representation:
Counsel:
A Hughes (Applicant)
E Balodis (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/379765
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 September 2016

Before:

Armitage DCJ

File Number(s):

2013/379765

Judgment

FULLERTON J: The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal his convictions after a jury returned verdicts of guilty on 7 of 10 counts alleging a range of sexual offences between 2004 and 2010 committed against KR, a child aged between 4 years and 10 years at the time of the offending.
On 15 December 2016 the applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years.
The appeal was heard on 16 March 2018. The Court reserved its decision on that day. In late May 2018 the Court was advised that the applicant died of natural causes on 13 May 2018.
The indictment presented at the applicant’s trial in September 2016 contained…

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 TWM v The Queen

Details

AGLC: TWM v The Queen [2018] NSWCCA 276
Case: [2018] NSWCCA 276
Decision Date: 04 December 2018

CaseChat Overview and Summary

The appellant was convicted by a jury of seven counts of sexual offences against a single complainant. The jury returned verdicts of not guilty on three other counts. The appellant appealed against his conviction, arguing that the verdicts were unreasonable. The High Court of Australia heard the appeal and examined the legal principles surrounding the assessment of the reasonableness of jury verdicts, particularly in the context of multiple counts against a single complainant.

The court considered the significance of the acquittals in assessing the reasonableness of the guilty verdicts. It examined whether the jury's rejection of the complainant's evidence on one count impacted the assessment of reliability in respect of the other counts. The court also evaluated whether a rational basis existed for the difference in the verdicts returned. The central issue was whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences for which he was convicted.

The court found that the jury's verdicts, while seemingly inconsistent, were not unreasonable. The court held that the jury was entitled to accept the complainant's evidence in part and reject it in other respects, provided there was a rational basis for doing so. The court held that the acquittals did not necessarily undermine the reliability of the evidence accepted by the jury. The verdicts were deemed to be within the range of possible outcomes that a properly directed jury could reach. The appeal was dismissed, and the convictions were upheld.

The High Court confirmed that the jury's verdicts were rational and based on a proper consideration of the evidence. The court emphasised that the jury's role is to assess the credibility of the evidence and make findings of fact, provided those findings are supported by a rational basis. The court held that the acquittals did not necessarily indicate a lack of reliability in the evidence accepted by the jury. The convictions were affirmed, and the appeal was dismissed.

Orders