Wade v R

Case [2018] NSWCCA 85 11 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wade v R [2018] NSWCCA 85
Hearing dates: 28 March 2018
Decision date: 11 May 2018
Before: R A Hulme J at [1];
Schmidt J at [201];
Hamill J at [246]
Decision:
1. Leave to appeal against conviction and sentence granted.
2. Appeals against conviction and sentence dismissed.
3. Pursuant to s 18 of the Criminal Appeal Act 1912, the sentences imposed in the District Court on 3 November 2017 are varied as follows:
Count 1 – the sentence of imprisonment for 6 months is to date from 20 April 2018.
Count 2 – the sentence of imprisonment for 6 months is to date from 20 July 2018.
Count 3 – the sentence of imprisonment for 15 months with a non-parole period of 6 months is to date from 20 July 2018. The non-parole period will expire on 19 January 2019 at which time the appellant will become entitled to release on parole. The total term of the sentence will expire on 19 October 2019.

Catchwords:
APPEALS – appeal against conviction – judge-alone trial – requirement to give reasons – historical indecent assaults by principal against pupils – whether trial judge failed to give reasons dealing with appellant’s and expert’s evidence occasioning miscarriage of justice – where appellant denied allegations but gave little evidence – where expert witness gave evidence of limitations of memory after time lapse – where trial judge gave extensive reasons for accepting complainant’s evidence over appellant’s evidence – trial judge gave adequate reasons why satisfied beyond reasonable doubt of accused’s guilt – ground rejected.

APPEALS – appeal against conviction – historical indecent assaults by principal against pupils – whether verdicts in judge-alone trial unreasonable – where complainants’ evidence said to be not cogent and that significant doubt necessary – open to trial judge to be satisfied of the accused’s guilt beyond reasonable doubt – appeal dismissed.
SENTENCING — appeal against sentence — severity — whether sentence manifestly excessive – where appellant convicted of three counts of indecent assault on pupils – where appellant sentenced to 18 months with non-parole period of 9 months – where appellant conceded imprisonment appropriate – whether appellant’s breach of trust more serious because he was school principal – sentencing judge not in error as to approach or applicable principles – leave to appeal granted – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) s 81
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1), 18
Criminal Procedure Act 1986 (NSW) ss 133, 293
Evidence Act 1995 (NSW) s 184
Parole of Prisoners Act 1966 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
Denham v R [2016] NSWCCA 309
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
Fleming v…

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 Wade v R

Details

AGLC: Wade v R [2018] NSWCCA 85
Case: [2018] NSWCCA 85
Decision Date: 11 May 2018

CaseChat Overview and Summary

The appellant, a former principal, appealed against his conviction and sentence in relation to historical indecent assaults on his students. The case was heard in the Court of Appeal where the appellant argued that the trial judge failed to provide adequate reasons for rejecting his evidence and that of an expert witness, resulting in a miscarriage of justice. The appellant claimed that the trial judge should have required significant doubt before convicting him.

The legal issues centred on whether the trial judge adequately explained why the appellant’s and the expert’s evidence was rejected in favour of the complainants’ accounts. The appellant argued that the trial judge did not provide sufficient reasons, which would have constituted a miscarriage of justice. The Court examined the trial judge’s reasons and found that they were detailed and sufficient, adequately explaining why the complainants’ evidence was accepted over the appellant’s. The trial judge concluded that the evidence against the appellant was credible and that the appellant’s guilt was established beyond reasonable doubt.

The Court of Appeal found that the trial judge provided comprehensive reasons for rejecting the appellant’s and the expert’s evidence, and for accepting the complainants’ testimonies. The Court held that the trial judge was entitled to be satisfied beyond reasonable doubt of the appellant’s guilt based on the evidence presented. The Court rejected the appeal against the conviction. Regarding the sentence, the Court found that the sentencing judge correctly applied the relevant principles and that the sentence was not manifestly excessive, given the nature and seriousness of the offences. The appeal against the sentence was dismissed, and the original sentence was upheld.

Orders