ABR (a pseudonym) v R [2020] NSWCCA 33

ABR (a pseudonym) v R [2020] NSWCCA 33

The appeal failed because the applicant established no miscarriage of justice or legal error. The tendency evidence had significant probative value because it was capable of proving a sexual interest in pre-pubescent girls, particularly their vaginas, which made it more likely that the alleged touching was deliberate rather than innocent or accidental; any unfair prejudice was sufficiently addressed by directions and by not tendering the underlying images. The complaints about agreed facts, new evidence, directions, comments, child witness procedure, competence and counsel did not show unfairness or loss of a real chance of acquittal. On the whole of the evidence, including the...

Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Rely on Grounds; Conviction Appeal in the Court of Criminal Appeal
Outcome
Extension of time granted; appeal against conviction dismissed; leave granted where necessary on some grounds and refused on others.
Legal Topics
['appeal Against Conviction' 'unreasonable Verdict' 'tendency Evidence' 'indecent Assault' 'child Witness Competence' 'jury Directions' 'miscarriage of Justice' 'incompetence of Counsel']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'unreasonable Verdict' 'tendency Evidence' 'indecent Assault' 'child Witness Competence' 'jury Directions' 'miscarriage of Justice' 'incompetence of Counsel']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Rely on Grounds; Conviction Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the verdicts on six child sexual offence counts were unreasonable or could not be supported by the evidence.' 'Whether the trial judge erred in admitting tendency evidence concerning searches, pornography websites and saved images said to show a sexual interest in pre-pubescent or pre-teen girls.' 'Whether any miscarriage of justice arose from the statement of agreed facts concerning tendency evidence.' 'Whether alleged destruction or inaccessibility of phone evidence caused a miscarriage of justice.' "Whether the trial judge's directions, comments, interjections and management of child witness evidence caused unfairness or miscarriage of justice." 'Whether the complainant was competent to give sworn evidence.' 'Whether alleged incompetence of trial counsel caused the applicant to lose a chance of acquittal that was fairly open.']

Ratio Decidendi

The appeal failed because the applicant established no miscarriage of justice or legal error. The tendency evidence had significant probative value because it was capable of proving a sexual interest in pre-pubescent girls, particularly their vaginas, which made it more likely that the alleged touching was deliberate rather than innocent or accidental; any unfair prejudice was sufficiently addressed by directions and by not tendering the underlying images. The complaints about agreed facts, new evidence, directions, comments, child witness procedure, competence and counsel did not show unfairness or loss of a real chance of acquittal. On the whole of the evidence, including the...

Court Disposition

Extension of time granted; appeal against conviction dismissed; leave granted where necessary on some grounds and refused on others.

Orders

  • ['Extend to 8 August 2019 the time for the applicant, ABR, to file his notice of appeal.' "Dismiss ABR's appeal against conviction of each of the six offences." 'Grant leave where necessary to rely on grounds 1, 2, 3, 4, 5, 6, 11, 12, 18, 19, 20, 21, 22 and 23 and dismiss each of those grounds.' 'Refuse leave to...