Hoeben CJ at CL at [1]; Rothman J at [138]; Price J at [142]
Decision:
(1) Leave to appeal granted. (2) Appeal against conviction dismissed.
Catchwords:
CRIMINAL LAW – conviction appeal – sixteen counts alleging sexual misconduct against an underage complainant – six alleged incidents between 1986 and 1989 – jury trial – not guilty verdicts returned on eleven matters and guilty verdicts on five matters – applicant contends verdicts inconsistent – evidence principally that of applicant and complainant – pretext phone call – whether verdicts capable of standing together – verdicts not inconsistent – leave to appeal granted but appeal dismissed.
Robert Walker – Applicant Regina – Respondent Crown
Representation:
Counsel: S Pararajasingham – Applicant BK Baker – Respondent Crown
Solicitors: B Wrench – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2014/335561
Publication restriction:
Non-publication order re: name of the complainant
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
23 June 2016
Before:
Frearson SC DCJ
File Number(s):
2014/335561
HOEBEN CJ at CL:
Nature of proceedings
Between 22 February and 7 March 2016 the applicant stood trial before his Honour Judge Frearson SC and a jury in the District Court of the New South Wales at Griffith.
The indictment contained sixteen counts, all of them alleging sexual misconduct against a single complainant. The 16 counts arose from six alleged incidents between 1 June 1985 and 18 August 1989. The complainant was born in February 1973.
At the conclusion of the trial, the jury returned verdicts of not guilty to counts 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 and verdicts of guilty on counts 1, 2, 6, 15 and 16.
On 23 June 2016 his Honour imposed an aggregate sentence of imprisonment with a non-parole period of 5 years commencing 7 March 2016 and expiring 6 March 2021 with an additional term of 4 years expiring 6 March 2025.
The applicant relies on one ground of appeal:
The verdicts of the jury in relation to counts 1, 2, 6, 15 and 16 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of the jury of not guilty on counts…
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
Xiao v R [2019] NSWCCA 4
Case
[2019] NSWCCA 4
Decision Date
CaseChat Overview and Summary
Xiao brought an appeal against the Crown in relation to a conviction based on sixteen counts of sexual misconduct against an underage complainant. The alleged incidents occurred over a period between 1986 and 1989. Following a jury trial, verdicts of not guilty were returned on eleven counts while guilty verdicts were returned on the remaining five counts. The applicant argued that the verdicts were inconsistent, a contention based on the premise that the evidence presented principally involved the accounts of the applicant and the complainant, with a pretext phone call serving as a critical piece of evidence. The central issue for the court was whether the verdicts could logically coexist.
The court considered the nature of the evidence presented, particularly focusing on the inconsistencies between the accounts of the applicant and the complainant, and the significance of the pretext phone call. The court held that the verdicts were not inconsistent, as each count was assessed on its individual merits, and the jury was entitled to accept or reject parts of the evidence as they saw fit. The court dismissed the appeal, finding that the verdicts could indeed stand together as they were supported by the evidence presented at trial and the jury's assessment of that evidence.
In light of the court's decision, the appeal was dismissed. The court found that the jury's verdicts, while seemingly disparate, were not inherently inconsistent and were supported by the evidence. The applicant's contention that the verdicts were illogical or contradictory was not upheld. Consequently, the conviction stood as determined by the jury, and no further action was required regarding the verdicts.