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Valentine v The King

Valentine v The King

Case [2023] NSWCCA 43 10 March 2023

Appeal

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Valentine v R [2023] NSWCCA 43
Hearing dates: 19 October 2022
Date of orders: 10 March 2023
Decision date: 10 March 2023
Before: Basten AJA at [1];
Button J at [250];
Wilson J at [253]
Decision:
(1)   Grant the applicant leave to appeal from the convictions entered in the District Court on the indictment dated 11 February 2019.
(2)   Uphold the appeal with respect to the conviction on count 24, quash the conviction and enter a verdict of acquittal on that count.
(3)   With respect to the aggregate sentence –
   (a)   grant leave to the appellant to file written submissions with respect to any possible reduction of the aggregate sentence within four weeks of the date of this judgment;
   (b)   grant leave to the Director to file submissions in reply within six weeks of the date of this judgment;
   (c)   direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 14 days of the filing of the Director’s submissions in response.
(4)   Otherwise dismiss the appeal.

Catchwords:
CRIMINAL PROCEDURE – appeal against convictions for sexual offences – appeal filed months late – application for extension of time – 21 proposed grounds of appeal
CRIME – appeal – ground – unreasonableness of verdict – use of tendency evidence on appeal to assess whether reasonable doubt to be entertained
CRIME – appeal – unreasonable verdicts – elevating subjective demeanour-based findings over intrinsic value of evidence – failure to apply forensic prejudice in accepting complainants’ evidence – global rejection of appellant’s evidence
EVIDENCE – admissibility of historic complaint – admission to prove truth of content – Evidence Act 1995 (NSW), s 66
EVIDENCE – disallowance of cross-examination suggesting other sexual activity – defence that other officer raped victim – relevance of questions – whether other activity at or about the time of the charged offence – whether other activity and charged offence part of a connected set of circumstances – Criminal Procedure Act 1986 (NSW), s 293

Legislation Cited:
Child Welfare Act 1939 (NSW), s 72
Crimes Act 1900 (NSW), ss 61, 63, 76
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), s 293
Evidence Act 1995 (NSW), ss 55, 66, 116

Cases Cited:
Dansie v The Queen [2022] HCA 25; 96 ALJR 728
Dansie v The Queen [2020] SASCFC 103
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GS v R [2022] NSWCCA 225
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123;

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 Valentine v The King

Details

AGLC: Valentine v The King [2023] NSWCCA 43
Case: [2023] NSWCCA 43
Decision Date: 10 March 2023

CaseChat Overview and Summary

The appeal was against convictions for sexual offences, and the appellant was contesting the decision of the District Court of New South Wales. The appellant, Valentine, was appealing against the delay in filing the appeal and sought an extension of time to file the grounds of appeal. The appellant proposed 21 grounds of appeal, which included the unreasonableness of the verdict, the use of tendency evidence, and the admissibility of historic complaint. The appellant argued that the trial judge had elevated the subjective demeanour-based findings over the intrinsic value of the evidence and failed to apply forensic prejudice in accepting the complainants’ evidence. The appellant also argued that the trial judge had globally rejected the appellant’s evidence.

The legal issues that the court had to decide were whether the appeal was filed late and whether an extension of time was granted. The court also had to decide whether the evidence presented was admissible, and whether the appellant’s evidence was global or if it was relevant. The court had to consider whether the historic complaint was admissible to prove the truth of the content and whether the cross-examination suggesting other sexual activity was relevant to the charged offence. The court also had to consider whether the other activity and the charged offence were part of a connected set of circumstances.

The court held that the appeal was filed late and that an extension of time was granted. The court held that the evidence presented was admissible, and the appellant’s evidence was not global. The court held that the historic complaint was admissible to prove the truth of the content and that the cross-examination suggesting other sexual activity was not relevant to the charged offence. The court also held that the other activity and the charged offence were not part of a connected set of circumstances. The appeal was dismissed, and the convictions were upheld.

The court dismissed the appeal and upheld the convictions. The court found that the evidence presented was admissible, and the appellant’s evidence was not global. The court found that the historic complaint was admissible to prove the truth of the content and that the cross-examination suggesting other sexual activity was not relevant to the charged offence. The court also found that the other activity and the charged offence were not part of a connected set of circumstances. The appeal was dismissed, and the convictions were upheld.

Orders