Wallace v The King - [2024] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wallace v R [2024] NSWCCA 176
Hearing dates: 18 September 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Before: Harrison CJ at CL at [1]
Davies J at [2]
Rigg J at [36]
Decision:
(1) Grant leave to appeal.
(2) Uphold ground 3 of the appeal.
(3) Quash the conviction of the appellant.
(4) Order a new trial.
(5) Stand the matter into the arraignments list in the District Court on 11 October 2024.

Catchwords:
CRIME – appeals – appeal against conviction – miscarriage of justice – whether trial miscarried because the applicant was denied the benefit of a good character direction – where applicant was unrepresented at the trial – where applicant had no history of sexual or violence offences – where no character direction of any sort was given – where Crown conceded that failure to give at least a limited good character direction gave rise to a miscarriage of justice - appeal upheld – conviction quashed – new trial ordered

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J, 558

Cases Cited:
JV v R [2017] NSWCCA 49
Kanbut v R [2022] NSWCCA 259
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25

Texts Cited:
Nil

Category: Principal judgment
Parties: Peter Norman Wallace (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Jones & I Hogan (Applicant)
A Bonnor (Respondent)
Solicitors:
Frank Mersal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/158208
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

18 July 2023

Before:

Priestley SC DCJ

File Number(s):

2021/158208

JUDGMENT

HARRISON CJ AT CL: I agree with Davies J.
DAVIES J: The applicant was charged with one count of sexual intercourse without consent with a person under the age of 16 years and under his authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW). He pleaded not guilty and stood trial before Judge Priestley SC and a jury in Coffs Harbour on 29 March 2023.
The applicant was unrepresented at the trial. On 5 April 2023, the jury retired to consider its verdict. On the same day the jury returned a verdict of guilty.
On 18 July 2023 Judge Priestly sentenced the applicant to imprisonment for 4 years 6 months commencing 5 April 2023 and expiring 4 October 2027 with a non-parole period of 2 years 6 months expiring 4 October 2025.

The offending:

In about April 2011, LT, the complainant’s maternal aunt, married the applicant. In around June or July 2011, the complainant, AM, moved in with LT and the applicant in Coffs Harbour. Sometime around September 2011, the complainant went on a trip to Jindabyne with the applicant in his car to visit a friend and his friend’s daughter, C. LT did not go with them.
While traveling to…

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 Wallace v The King

Details

AGLC: Wallace v The King [2024] NSWCCA 176
Case: [2024] NSWCCA 176
Decision Date: 25 September 2024

CaseChat Overview and Summary

Wallace, the appellant, brought an appeal against his conviction to the High Court, challenging the fairness of his trial. The central issue was whether the trial had miscarried due to the absence of a good character direction, which was not provided because the appellant was unrepresented at the trial. The appellant had no prior history of sexual or violent offences, and the Crown acknowledged that the omission to give at least a limited good character direction constituted a miscarriage of justice. The appeal hinged on whether the absence of such a direction so prejudiced the appellant that it deprived him of a fair trial.

The court examined the role of a good character direction in criminal trials, noting its importance in mitigating the harshness of a guilty verdict. Given the appellant's lack of representation and the Crown's concession, the court concluded that the trial was unfair. The absence of a good character direction was a significant error, especially in a case involving an unrepresented defendant with no prior offences. The court found that this omission prejudiced the appellant's case and denied him a fair trial, warranting the quashing of his conviction.

The High Court determined that the trial's miscarriage of justice necessitated the appeal's success. The court quashed the conviction and ordered a new trial, recognising the substantial impact of the error on the appellant's right to a fair hearing. The decision underscored the importance of ensuring fair trial principles are upheld, even in the absence of legal representation. The court's ruling highlighted the necessity of providing a good character direction, especially when the accused has no criminal history, to maintain the integrity of the judicial process.

Orders