R v Pettit; R v Riley [2021] NSWDC 385

R v Pettit; R v Riley [2021] NSWDC 385

The Court proceeded on the basis that section 18 appeals are rehearings on the evidence below, requiring attention to the magistrate's credibility advantage and to whether the decision below was correct rather than merely reasonably open. Pettit's appeal succeeded because, although the complainant's evidence and the words attributed to Pettit were accepted and the CCTV raised suspicion, the circumstantial facts still allowed a rational inference of incidental touching inconsistent with guilt, so the Crown had not proved intentional sexual touching beyond reasonable doubt. Riley's appeal failed because the magistrate properly treated the appellant's admitted lie as damaging to credit but...

Jurisdiction
Australia
Judgment Date
05 August 2021
Procedural Posture
Conviction Appeals Under Section 18 of the Crimes (appeal and Review) Act 2001 (nsw) / District Court Rehearing on Appeal From Local Court Convictions
Outcome
Pettit: appeal allowed, conviction and sentencing orders set aside. Riley: appeal dismissed, conviction and sentencing orders confirmed.
Legal Topics
['appeal Against Conviction' 'sexual Touching of Child Older Than 10 and Less Than 16 Years' 'nature of Section 18 Appeal' 'circumstantial Evidence' 'witness Credibility' 'liberato Direction']
['criminal Law' 'criminal Procedure'] ['appeal Against Conviction' 'sexual Touching of Child Older Than 10 and Less Than 16 Years' 'nature of Section 18 Appeal' 'circumstantial Evidence' 'witness Credibility' 'liberato Direction']

Case Brief

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Procedural Posture

Conviction Appeals Under Section 18 of the Crimes (appeal and Review) Act 2001 (nsw) / District Court Rehearing on Appeal From Local Court Convictions

Legal Issues

  1. 1 ['Whether a section 18 conviction appeal requires the appellant to demonstrate legal, factual or discretionary error, or whether the District Court must determine guilt afresh without identifying error.' "In R v Pettit, whether the evidence, including CCTV and the complainant's account, established beyond reasonable doubt that the touching was intentional sexual touching rather than incidental contact." "In R v Riley, whether the magistrate placed too much weight on the appellant's admitted lie to police about entering or knowing the location of the complainant's bedroom, and whether the complainant's evidence proved the offence beyond reasonable doubt."]

Ratio Decidendi

The Court proceeded on the basis that section 18 appeals are rehearings on the evidence below, requiring attention to the magistrate's credibility advantage and to whether the decision below was correct rather than merely reasonably open. Pettit's appeal succeeded because, although the complainant's evidence and the words attributed to Pettit were accepted and the CCTV raised suspicion, the circumstantial facts still allowed a rational inference of incidental touching inconsistent with guilt, so the Crown had not proved intentional sexual touching beyond reasonable doubt. Riley's appeal failed because the magistrate properly treated the appellant's admitted lie as damaging to credit but...

Court Disposition

Pettit: appeal allowed, conviction and sentencing orders set aside. Riley: appeal dismissed, conviction and sentencing orders confirmed.

Orders

  • ['R v Pettit: Appeal allowed.' 'R v Pettit: Conviction set aside.' 'R v Pettit: Sentencing orders set aside.' 'R v Riley: Appeal dismissed.' 'R v Riley: Conviction confirmed.' 'R v Riley: Sentencing orders are noted not to have been the subject of appeal and are therefore confirmed.']