Vagg v R

Case [2020] NSWCCA 134 24 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vagg v R [2020] NSWCCA 134
Hearing dates: 16 March 2020
Date of orders: 24 June 2020
Decision date: 24 June 2020
Before: Simpson AJA at [1]
Rothman J at [80]
N Adams J at [98]
Decision:
1. Time for filing a notice of appeal is extended to 18 December 2019.
2. Appeal dismissed.

Catchwords:
EVIDENCE – CRIME – tendency evidence – identity of the offender and fact of the commission of the offences in issue – tendency evidence allegations of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant – tendency evidence of conduct committed towards different child, although of comparable age, three or four years after alleged offence – admission of tendency evidence did not give rise to a miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), s 66A
Criminal Appeal Act 1912 (NSW), s 10(1)(a), s 10(1)(b)
Criminal Appeal Rules, r 3A(1)(a), r 3A(2)
Criminal Procedure Act 1986 (NSW), s 306S, Sch 2, Pt 29
Evidence Act 1995 (NSW), s 55, 56, s 97(1), s 101(2)

Cases Cited:
BC v R (2019) NSWCCA 111
DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338
R v Ford (2009) NSWCCA 306; (2009) 201 A Crim R 451
The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) ALJR 846

Category: Principal judgment
Parties: Gregory John Vagg (Applicant)
The Crown (Respondent)
Representation:
Counsel:
G E Lewer (Applicant)
M Millward (Crown)
Solicitors:
Younes & Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/208407
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 September 2017

Before:

Girdham SC DCJ

File Number(s):

2015/208407

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was tried and convicted of two counts of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW), both alleged to have been committed on one day between 12 June 2010 and 31 December 2010, against the same child (the complainant) who was then 7 years of age.

The applicant was a window cleaner who was engaged by the complainant’s parents to clean windows at their home in a Sydney suburb. The first offence was committed when the applicant was cleaning a glass panel at the front door of the house. The applicant lifted the complainant, placing his hand inside her tights and underwear and…

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 Vagg v R

Details

AGLC: Vagg v R [2020] NSWCCA 134
Case: [2020] NSWCCA 134
Decision Date: 24 June 2020

CaseChat Overview and Summary

The High Court heard an appeal against a conviction for sexual offences against a child. The applicant, the respondent, sought to appeal against a decision of the New South Wales Court of Criminal Appeal which upheld a conviction for offences against a child. The legal issues before the court included whether the trial judge had erred in admitting evidence of the applicant’s conduct towards another child, who was of a comparable age, to prove the identity of the applicant as the offender and the fact of the commission of the offences in issue. The applicant argued that the evidence of his conduct towards the other child, which was committed three or four years after the alleged offence, was substantially different in nature from the conduct the subject of the allegations made by the complainant, and therefore should not have been admitted.

The court found that the evidence of the applicant’s conduct towards the other child was relevant to prove the identity of the applicant as the offender and the fact of the commission of the offences in issue, and that the trial judge did not err in admitting it. The court held that the evidence was relevant to prove the identity of the applicant as the offender and the fact of the commission of the offences in issue, as it was similar in nature to the conduct the subject of the allegations made by the complainant, and that the difference in time did not render it irrelevant. The court also held that the admission of the evidence did not give rise to a miscarriage of justice, as it was properly evaluated and considered by the jury in the context of all the evidence before them.

The court dismissed the appeal and affirmed the conviction of the applicant. The court held that the evidence of the applicant’s conduct towards the other child was properly admitted and considered by the jury, and that the admission of the evidence did not give rise to a miscarriage of justice. The court held that the evidence was relevant to prove the identity of the applicant as the offender and the fact of the commission of the offences in issue, and that the jury was properly directed on the evaluation and consideration of the evidence. The court held that the conviction of the applicant was safe and correct, and that there was no miscarriage of justice in the trial.

Orders