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WG v R; KG v R

WG v R; KG v R

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Case Copied 9 July 2020 81 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: WG v R; KG v R [2020] NSWCCA 155
Hearing dates: 17 & 19 September 2019
Date of orders: 9 July 2020
Decision date: 09 July 2020
Before: Bathurst CJ at [1]; Fullerton J at [1117]; Fagan J at [1588]
Decision:
WG
(1)   Grant the applicant leave to appeal against conviction.
(2)   Dismiss the appeal.
(3)   Grant the applicant leave to appeal against sentence.
(4)   Dismiss the appeal.
KG
(1)   Grant the applicant leave to appeal against conviction.
(2)   Dismiss the appeal.
(3)   Grant the applicant leave to appeal against sentence.
(4)   Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – miscarriage of justice – whether the absence of new evidence led to a miscarriage of justice – whether Crown has an obligation to call all expert witnesses available
CRIME – appeals – appeal against conviction – whether the decision for a joint trial and the multiplicity of charges resulted in a miscarriage of justice – whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdict
CRIME – appeals – appeal against conviction – application for discharge of jury – alleged juror bullying – whether the trial judge erred in refusing to discharge the jury
CRIME – appeals – appeal against conviction – admissibility of tendency evidence
CRIME – appeals – appeal against conviction – unreasonable verdict – whether the jury must have been left with a reasonable doubt – advantage enjoyed by the jury – whether the available evidence was capable of meeting the submissions – reliability of complainant
CRIME – appeals – appeal against sentence – manifest excess – gravity of offending – where the facts lay on the spectrum of least serious instances of offence to worst category – range of possible sentences that could be imposed
CRIME – appeals – appeal against sentence – evidence of good character – whether the sentencing judge erred in not giving weight to prior good character – good character taken into account but given no weight
CRIME – appeals – appeal against sentence – whether error by the sentencing judge – consideration of non-exculpatory duress – treatment of prospects of rehabilitation – consideration of applicant’s mental health – treatment of victim impact statements

Legislation Cited:
Crimes Act 1900 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 89
Jury Act 1977 (NSW), s 73A

Cases Cited:
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Crofts v The Queen 186 CLR 427; [1996] HCA 22
Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
EG v R [2015] NSWCCA 21
Elyard v R [2006] NSWCCA 43
Gilham v R [2012] NSWCCA 131
Hughes v R [2018] NSWCCA 2
IMM v The Queen (2016) 257 CLR 300; [2016] HCA…

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.

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Details

Case: [2020] NSWCCA 155
Decision Date: 09 July 2020

CaseChat Overview and Summary

The appeals in these matters concern the convictions and sentences of two defendants, WG and KG, arising from a criminal trial where they were jointly charged with multiple offences. The defendants appealed against their convictions and sentences on several grounds, including the absence of new evidence, the trial judge's handling of the trial, and the admissibility of certain evidence. The case was heard in the High Court of Australia, which considered the merits of the appeals and the potential for a miscarriage of justice. The court also examined whether the Crown had an obligation to call all expert witnesses available and whether the jury's verdict was unreasonable. Furthermore, the sentencing appeals focused on whether the sentences imposed were manifestly excessive and whether the sentencing judge had erred in not considering certain mitigating factors.

The legal issues before the court encompassed the absence of new evidence and its impact on the fairness of the trial, the trial judge's management of the trial, including the decision for a joint trial, the multiplicity of charges, and the refusal to discharge the jury. The court also considered whether the Crown was obligated to call all available expert witnesses and whether the jury's verdict was unreasonable. Additionally, the court assessed the admissibility of tendency evidence, the reliability of the complainant, and the reasonableness of the jury's verdict. The sentencing appeals questioned whether the sentences were manifestly excessive and whether the sentencing judge had erred in not considering the applicants' good character, non-exculpatory duress, prospects of rehabilitation, mental health, and victim impact statements.

The court examined the arguments made by the defendants and found that there were no grounds to set aside the convictions or sentences. The absence of new evidence did not necessarily lead to a miscarriage of justice, and the Crown was not obligated to call all available expert witnesses. The trial judge's handling of the trial, including the decision for a joint trial, the multiplicity of charges, and the refusal to discharge the jury, was found to be within the trial judge's discretion and did not result in a miscarriage of justice. The court also found that the jury's verdict was not unreasonable and that the available evidence was capable of supporting the verdict. Furthermore, the court determined that the sentences imposed were not manifestly excessive, and the sentencing judge had appropriately considered the mitigating factors.

The final orders of the court were to dismiss the appeals against conviction and sentence for both defendants. The court found that the trial and sentencing processes were conducted fairly and that there was no miscarriage of justice. The convictions and sentences were upheld, and the defendants' appeals were rejected.

Orders