White v The Queen - [2018] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: White v R [2018] NSWCCA 156
Hearing dates: 14 May 2018
Decision date: 27 July 2018
Before: Beazley P at [1]
Button J at [2]
Fagan J at [231]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – child sexual assault – guilty verdict on single count in context of multiple acquittals – conviction said to be unreasonable and unable to be supported having regard to the evidence – asserted weakness of evidence of complainant – assertedly not open to jury to be satisfied that the offence occurred without the consent of the complainant and with knowledge of her state of mind – detailed analysis of evidence – rational and logical basis for differentiation of count 7 open to jury – satisfaction of aggravated offence open to jury – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Haines v R [2018] NSWCCA 11
Irwin v The Queen [2018] HCA 8
M v the Queen [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
The Queen v Baden-Clay [2016] HCA 25; (2016) 258 CLR 308
Category: Principal judgment
Parties: Shawn Raymond White (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Avenell (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/241652
Publication restriction: Non-publication order in relation to anything that might identify the complainant.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 August 2017

Before:

North DCJ

File Number(s):

2014/241652

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Button J. I agree with his Honour’s reasons and proposed orders.
BUTTON J:

Introduction

Between 6 and 13 February 2017, Mr Shawn Raymond White (the applicant) stood trial before his Honour Judge North and a jury of twelve in the District Court of New South Wales at Dubbo.
The indictment contained 11 counts, all of them pertaining to sexual offences that he had allegedly committed against the complainant, a young girl who was at the relevant times aged 12 or 13 years, and to whom I shall refer by the pseudonym Cathy. A number of alternative counts that did not appear on the indictment were also left to the jury. I shall discuss in detail the counts left to the jury shortly.
At the conclusion of the trial, the jury returned a verdict of not guilty on all counts except count 7. That count alleged that, between 18 December 2013 and 14 July 2014, the applicant had sexual intercourse with Cathy without her consent, knowing that she was not consenting to that sexual intercourse, in circumstances of aggravation constituted by her age.
His Honour subsequently sentenced the applicant to imprisonment. Because there is no application for leave to appeal against sentence, the details of…

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 [2018] NSWCCA 156
Case: [2018] NSWCCA 156
Decision Date: 27 July 2018

CaseChat Overview and Summary

The appellant, White, appealed against his conviction for a single count of child sexual assault in the County Court of Victoria, a decision that was brought before the High Court of Australia. The trial had resulted in a guilty verdict on one count, while the appellant was acquitted on multiple other counts. The primary contention was whether the conviction was unreasonable and unsupported by the evidence, particularly given the weakness of the complainant's evidence. Additionally, it was argued that the jury could not have been satisfied beyond reasonable doubt that the offence occurred without the complainant's consent and with knowledge of her state of mind.

The central legal issue revolved around the sufficiency and reliability of the evidence presented to the jury. The court was required to determine if the evidence was robust enough to support the jury's conclusion that the offence had occurred under the specified conditions. The appellant's argument hinged on the perceived inadequacy of the complainant's testimony and the alleged impossibility for the jury to have reached a rational and logical conclusion that differentiated count 7 from the others. The court was also tasked with examining whether it was open to the jury to be satisfied that the offence was aggravated, as charged.

The High Court, after conducting a detailed analysis of the evidence, concluded that the conviction was indeed supported by a rational and logical basis. The court held that the evidence, while not ideal, was sufficient for the jury to conclude that the offence occurred without the complainant's consent and with knowledge of her state of mind. Furthermore, the court found that it was open to the jury to differentiate count 7 from the other counts, and that the jury's satisfaction of the aggravated nature of the offence was also rational and logical. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders