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WS v The The Queen

WS v The The Queen

Case [2022] NSWCCA 77 11 April 2022

Appeal

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WS v R [2022] NSWCCA 77
Hearing dates: 14 March 2022
Date of orders: 11 April 2022
Decision date: 11 April 2022
Before: Macfarlan JA at [1];
Walton J at [96];
Rothman J at [97]
Decision:
(1) Grant leave to the applicant to appeal against his convictions.
(2) Allow the appeal.
(3) Quash the applicant’s convictions.
(4) Enter verdicts of acquittal on the charges upon which the applicant was convicted.

Catchwords:
CRIME — appeals — appeal against conviction — unreasonable verdict
CRIME — appeals — appeal against conviction — miscarriage of justice — whether a miscarriage of justice resulted from the failure of trial counsel for the applicant to seek to have admitted pursuant to s 293(4)(c) Criminal Procedure Act 1986 (NSW) evidence that the complainant had sexual experience or had taken part in sexual activity
EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether the trial judge erred in declining to exclude evidence of a pregnancy test under s 137 of the Evidence Act 1995 (NSW)

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), ss 130A(1), 289F(1), 293, 294
Evidence Act 1995 (NSW), ss 38(1)(a), 55, 56, 137, 165B, 192, Dictionary

Cases Cited:
Hanna v The Queen [2017] NSWCCA 168
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MS v R [2022] NSWCCA 13
Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
RD (a pseudonym) v R [2021] NSWCCA 94
Restricted Judgment [2021] NSWCCA 113
Xie v The Queen [2021] NSWCCA 1; (2021) 386 ALR 371

Category: Principal judgment
Parties: WS (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Odgers (Applicant)
M Millward (Respondent)
Solicitors:
Doyle Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00251010
Publication restriction: Statutory non-publication order on the identity of the complainant and any material that tends to identify her under s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). This extends to the publication of the name of the applicant and the complainant’s older brother SS.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 December 2020

Before:

Weber SC DCJ

File Number(s):

2018/00251010

Judgment

MACFARLAN JA: In December 2020 the applicant stood trial in the District Court before a judge and jury on an indictment alleging three offences of sexual intercourse without consent, contrary to s 61D(1) of the Crimes Act 1900 (NSW) (Counts 1, 3 and 4). As an alternative to Count 1 the applicant was charged under Count…

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 WS v The The Queen

Details

AGLC: WS v The The Queen [2022] NSWCCA 77
Case: [2022] NSWCCA 77
Decision Date: 11 April 2022

CaseChat Overview and Summary

The appeal in WS v The Queen concerned the appellant's conviction for a criminal offence. The court was asked to consider whether the verdict was unreasonable and whether a miscarriage of justice had occurred due to trial counsel's failure to admit certain evidence under the Criminal Procedure Act 1986 (NSW). The issue before the court was whether the failure to introduce evidence of the complainant's sexual experience or activity resulted in a miscarriage of justice. Additionally, the court needed to determine whether the trial judge erred in not excluding evidence of a pregnancy test under the Evidence Act 1995 (NSW).

The court held that the appeal against conviction was not successful because the verdict was not unreasonable. Regarding the potential miscarriage of justice, the court found that the trial counsel's failure to seek the admission of evidence about the complainant's sexual experience or activity did not result in a miscarriage of justice. The court concluded that the evidence was not so significant that it would likely have changed the outcome of the trial. Regarding the exclusion of the pregnancy test evidence, the court found that the trial judge did not err in declining to exclude it. The court held that the evidence was relevant and could assist in determining the complainant's credibility.

The court's decision was that the appeal against conviction was dismissed. No further orders were made regarding the other issues raised in the appeal.

Orders