Alexander (a pseudonym) v R [2019] NSWCCA 79

Alexander (a pseudonym) v R [2019] NSWCCA 79

No miscarriage of justice occurred as exclusion of the unlawfully recorded telephone conversations did not materially affect any issue at trial or credibility of witnesses; primary judge properly scrutinised complainant’s evidence including inconsistencies; applicant was afforded procedural fairness; shifting of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 April 2019
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal dismissed; leave to appeal granted.
Legal Topics
['procedural Fairness' 'admissibility of Evidence' 'child Sexual Assault' 'appeals Against Conviction' 'appeals Against Sentence' 'judge Alone Trial' 'self Represented Accused' 'surveillance Devices Act' 'evidence Act']
['criminal Law'] ['procedural Fairness' 'admissibility of Evidence' 'child Sexual Assault' 'appeals Against Conviction' 'appeals Against Sentence' 'judge Alone Trial' 'self Represented Accused' 'surveillance Devices Act' 'evidence Act']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether the trial judge failed to provide procedural fairness to an unrepresented accused.' 'Whether recordings of telephone conversations were unlawfully recorded under the Surveillance Devices Act 2007 (NSW) and should have been admitted under s 138 of the Evidence Act 1995 (NSW).' 'Whether failure to admit the recordings or to explain their admissibility denied the accused a fair trial and caused a miscarriage of justice.' 'Whether the Crown case shifted at trial such that the applicant was denied ability to deal with an issue (Count 14).' "Whether the primary judge scrutinised the complainant's evidence with care; whether finding inconsistencies were not detrimental to credibility was correct." 'Whether the primary judge erred in finding that the applicant’s mental health at the time of offending was not causative.']

Ratio Decidendi

No miscarriage of justice occurred as exclusion of the unlawfully recorded telephone conversations did not materially affect any issue at trial or credibility of witnesses; primary judge properly scrutinised complainant’s evidence including inconsistencies; applicant was afforded procedural fairness; shifting of Crown case on Count 14 did not cause unfairness or forensic detriment; sentencing approach to applicant’s mental health was correct as no causation established.

Court Disposition

Appeal dismissed; leave to appeal granted.

Orders

  • ["Pseudonym order for 'Alexander' to protect identity of complainant under s 7 Court Suppression and Non-publication Orders Act 2010 (NSW); this order applies to all media, anywhere in the Commonwealth, until 20 years from the date of order." 'Prohibition on publishing information tending to reveal identity of...