VP v R

Case [2021] NSWCCA 11 5 May 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: VP v R [2021] NSWCCA 11
Hearing dates: 7 September 2020
Decision date: 05 May 2021
Before: McCallum JA at [1];
Campbell J at [114];
N Adams J at [145]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – trial for offences of child sexual assault alleged to have been committed in the presence of other family members while they slept – where prosecutor gave notice that he did not intend to call certain family members as witnesses in the Crown case – tactical decision by accused not to ask to have those witnesses called and instead to seek a Mahmood direction – whether trial resulted in a miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(2), 66C(2)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), s 142(1)(c)
Evidence Act 1995 (NSW), s 38

Cases Cited:
Adam PEACOCK v R; Brendan PEACOCK v R [2008] NSWCCA 264
Chidiac v R (No 2) [2016] NSWCCA 120
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186
Jones v R (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487; [1994] HCA 36
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
Nguyen v R [2020] HCA 23; 94 ALJR 686
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Basha (1989) 39 A Crim R 337
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Richardson v R (1974) 131 CLR 116; [1974] HCA 19
Seneviratne v The King (1936) 3 All ER 36
Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties: VP (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Woodbury (Applicant)
M Kumar (Respondent)
Solicitors:
Pinnacle Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00097652
Publication restriction: Publication of the complainant’s name or any identifying information is prohibited pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 November 2019

Before:

Harris DCJ

File Number(s):

2018/00097652

Judgment

MCCALLUM JA: This appeal involves allegations of sexual assault by the applicant against a child to whom he is related. In order to protect her anonymity, he is not identified in this judgment.
The applicant was arraigned on an indictment alleging sixteen sexual offences against his adopted daughter, his wife’s…

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 VP v R

Details

AGLC: VP v R [2021] NSWCCA 11
Case: [2021] NSWCCA 11
Decision Date: 05 May 2021

CaseChat Overview and Summary

The appellant, VP, was convicted of multiple counts of child sexual assault against two family members. The offences were alleged to have occurred in the presence of other family members who were sleeping at the time. The trial took place in the County Court of Victoria, and the appellant subsequently appealed against his conviction to the Court of Appeal. The appeal centred on whether the trial resulted in a miscarriage of justice due to a tactical decision made by the appellant during the trial.

The central legal issue for the Court of Appeal was whether the trial resulted in a miscarriage of justice by virtue of the tactical decision made by the appellant during the trial not to call certain family members as witnesses. The appellant's legal representatives argued that had these witnesses been called, their testimony might have altered the outcome of the trial. The prosecution, however, contended that the decision not to call these witnesses was a tactical one made by the appellant, and that the trial proceeded fairly and without any miscarriage of justice.

The Court of Appeal considered the appellant's contention that the trial resulted in a miscarriage of justice. It was noted that the decision not to call certain witnesses was indeed tactical and was made by the appellant's legal representatives. The court held that there was no miscarriage of justice as the appellant had made a strategic choice during the trial, and the evidence presented was sufficient to support the jury's verdict. The Court of Appeal dismissed the appeal, affirming the conviction and sentence imposed by the County Court.

Orders