Stern JA at [1]; McHugh JA at [90]; Garling J at [91]
Decision:
(1) An extension of time for filing an application for leave to appeal, and leave to appeal, are granted.
(2) The appeal is dismissed.
Catchwords:
EVIDENCE – tendency evidence – exclusion of tendency evidence – where Crown served tendency notice shortly before trial – trial judge held that reasonable notice had been provided for the purposes of s 97(1)(a) of the Evidence Act – where late service caused no prejudice or unfairness to the accused – reasonable notice was provided
CRIME – appeals – appeal against sentence – manifest excess – child sexual assault offences – where indicative sentences are said to be manifestly excessive – neither the indicative sentences nor the aggregate sentence manifestly excessive
Counsel: G D Wendler (Applicant) M England SC (Crown)
Solicitors: Berrell Tinker Solicitors (Applicant) Solicitor for Public Prosecutions…
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
AGLC
Wright v The King [2025] NSWCCA 108
Case
[2025] NSWCCA 108
Decision Date
CaseChat Overview and Summary
The case before the court involved an appeal against conviction and sentence by the appellant, Wright, in relation to charges of child sexual assault. The matter was heard in the High Court of Australia, which was asked to determine whether the trial judge erred in admitting tendency evidence and whether the sentence imposed was manifestly excessive. The Crown had served a tendency notice shortly before the trial, which Wright argued was served too late. Wright also contended that the sentence imposed was manifestly excessive, particularly in light of the nature of the offences and the impact on the victims.
The legal issues before the court included whether the late service of the tendency notice by the Crown prejudiced the accused or resulted in unfairness, thereby invalidating the notice under section 97(1)(a) of the Evidence Act. The court also had to determine if the aggregate sentence was manifestly excessive. In assessing the manifest excess, the court considered the nature and impact of the crimes, the indicative sentences provided by the sentencing judge, and the principles of proportionality and consistency in sentencing.
The court held that the late service of the tendency notice did not cause prejudice or unfairness to the accused, and therefore, the notice was validly served. The trial judge's decision to admit the tendency evidence was upheld. Regarding the sentence, the court found that neither the individual nor the aggregate sentence was manifestly excessive. The sentencing judge had carefully considered the principles of sentencing and had imposed a sentence that was proportionate to the seriousness of the crimes, taking into account the impact on the victims and the need for deterrence.
The High Court dismissed the appeal against both conviction and sentence. The court's decision confirmed the importance of providing reasonable notice for the admission of tendency evidence and reinforced the principles guiding the assessment of manifest excess in sentencing. The final orders of the court were to uphold the conviction and sentence as determined by the trial judge.