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White v The Queen

White v The Queen

Case [2019] NSWCCA 168 2 August 2019

Appeal

Jurisdiction

Breach of Trust

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: White v R [2019] NSWCCA 168
Hearing dates: 12 July 2019
Decision date: 02 August 2019
Before: Leeming JA at [1];
R A Hulme J at [2];
Davies J at [145]
Decision:
1. Leave to appeal against conviction granted.
2. Appeal against conviction dismissed.

Catchwords: CRIME – appeals – appeal against conviction – jury verdict of guilty for offence of sexual intercourse with a child, and acquittal for three similar counts – whether conviction is unreasonable – whether it was not open to jury to be satisfied beyond reasonable doubt of guilt of applicant – review of evidence at trial – complainant aged 5-6 at time of alleged offending and aged 7 at trial – inconsistencies between contemporaneous police interview and cross-examination of complainant – young age and nature of child’s memory relevant to jury’s assessment of evidence – well open on evidence for jury to be satisfied beyond reasonable doubt of guilt – whether jury should have had a doubt about guilt because of acquittal on other counts – logical reasons for jury to have had reasonable doubt about other counts – appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 66A(1), 61M(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), ss 150, 306S
Evidence Act 1995 (NSW), s 13
Cases Cited: AZ v R [2018] NSWCCA 294
Crickitt v R [2018] NSWCCA 240
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Roos v R [2019] NSWCCA 67
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category: Principal judgment
Parties: White (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms K Stares (Applicant)
Mr F Veltro (Crown)
Solicitors:
Johnston Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/63360
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 August 2018

Before:

O’Brien DCJ

File Number(s):

2017/63360

HEADNOTE

[This headnote is not to be read as part of the judgment]
Following a jury trial, Mr White (a pseudonym for the applicant) was convicted of an offence of sexual intercourse with a child under the age of 10 years (Count 1), but was acquitted of three similar counts (Counts 2 to 4). The mothers of the complainant and applicant were old friends, and the applicant was a regular visitor at the complainant’s house. Count 1 was an allegation that the applicant (a juvenile at the time) had touched the complainant (aged between 5 and 6 years) underneath…

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 White v The Queen

Details

AGLC: White v The Queen [2019] NSWCCA 168
Case: [2019] NSWCCA 168
Decision Date: 02 August 2019

CaseChat Overview and Summary

In the case of White v The Queen, the appellant was convicted by a jury of the offence of sexual intercourse with a child under the age of 10. The jury acquitted the appellant of three similar counts. The appellant sought to appeal the conviction, arguing that it was unreasonable and that the jury should not have been satisfied beyond reasonable doubt of his guilt. The High Court was tasked with determining the legality of the conviction, considering the evidence presented during the trial, the age of the complainant, and the acquittal on similar charges.

The central legal issues the court needed to address were whether the conviction was unreasonable and whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court examined the inconsistencies between the complainant's contemporaneous police interview and her cross-examination testimony, the impact of the young age and memory of the child on the jury's assessment of the evidence, and the reasons for the jury's acquittal on similar counts. The court also considered whether the jury should have had a doubt about the guilt due to the acquittal on other counts.

The court concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the charge for which he was convicted. The court found that there were logical reasons for the jury to have had reasonable doubt about the other counts, which did not necessarily impact the conviction for the single count on which the appellant was found guilty. The inconsistencies in the complainant's evidence were not so significant as to render the conviction unreasonable. The court also held that the acquittal on similar counts did not necessitate a doubt about the conviction for the single count.

The appeal was dismissed by the court, maintaining the jury's verdict of guilty on the single count of sexual intercourse with a child under the age of 10.

Orders