Prasad v R [2020] NSWCCA 349

Prasad v R [2020] NSWCCA 349

The trial judge's admission of the complainant's 17 May 2017 interview was not shown to be erroneous under s 65(2)(c), except that representations concerning lack of consent for Count 1 should not have been admitted for that purpose, an error immaterial because the appellant was acquitted on Count 1. The interview was not required to be excluded under s 137 because its very high probative value was not outweighed by a demonstrated danger of unfair prejudice in the judge-alone trial. On the whole of the evidence, the conviction on Count 3 was open because the complainant made repeated complaints of anal rape and there was supporting evidence of bruising and anal injury, but the verdicts on...

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Aggregate Sentence From District Court Judge Alone Trial; Re Sentencing on Count 3
Outcome
Leave to appeal granted to the extent necessary; appeal against convictions allowed for Counts 2, 4 and 5; convictions on those counts quashed and verdicts of acquittal entered; appeal against conviction on Count 3 dismissed; appeal against aggregate sentence allowed; appellant re-sentenced on Count 3.
Legal Topics
['hearsay Exception Where Maker Not Available Under S 65(2)(c) Evidence Act 1995 (nsw)' 'exclusion of Prejudicial Evidence Under S 137 Evidence Act 1995 (nsw)' 'unreasonable Verdict in Criminal Appeal' 'aggravated Sexual Assault' 're Sentencing After Successful Conviction Appeal']
['criminal Law' 'evidence' 'sentencing'] ['hearsay Exception Where Maker Not Available Under S 65(2)(c) Evidence Act 1995 (nsw)' 'exclusion of Prejudicial Evidence Under S 137 Evidence Act 1995 (nsw)' 'unreasonable Verdict in Criminal Appeal' 'aggravated Sexual Assault' 're Sentencing After Successful Conviction Appeal']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Convictions and Aggregate Sentence From District Court Judge Alone Trial; Re Sentencing on Count 3

Legal Issues

  1. 1 ["Whether the trial judge misapplied s 65 of the Evidence Act 1995 (NSW) and Sio v The Queen by taking a global approach to admission of the deceased complainant's recorded police interview." "Whether the circumstances in which the complainant's representations were made made it highly probable that they were reliable under s 65(2)(c)." 'Whether the 17 May 2017 interview should have been excluded under s 137 because its probative value was outweighed by the danger of unfair prejudice to the appellant.' 'Whether the guilty verdicts on Counts 2, 3, 4 and 5 were unreasonable and could not be supported having regard to the evidence.' 'What sentence should be imposed for Count 3 after the convictions on Counts 2, 4 and 5 were quashed.']

Ratio Decidendi

The trial judge's admission of the complainant's 17 May 2017 interview was not shown to be erroneous under s 65(2)(c), except that representations concerning lack of consent for Count 1 should not have been admitted for that purpose, an error immaterial because the appellant was acquitted on Count 1. The interview was not required to be excluded under s 137 because its very high probative value was not outweighed by a demonstrated danger of unfair prejudice in the judge-alone trial. On the whole of the evidence, the conviction on Count 3 was open because the complainant made repeated complaints of anal rape and there was supporting evidence of bruising and anal injury, but the verdicts on...

Court Disposition

Leave to appeal granted to the extent necessary; appeal against convictions allowed for Counts 2, 4 and 5; convictions on those counts quashed and verdicts of acquittal entered; appeal against conviction on Count 3 dismissed; appeal against aggregate sentence allowed; appellant re-sentenced on Count 3.

Orders

  • ['Grant leave to appeal to the extent necessary.' "Allow the appeal in respect of the appellant's convictions on Counts 2, 4 and 5." 'Quash his convictions and enter verdicts of acquittal on those Counts.' "Dismiss the appeal against the appellant's conviction on Count 3." 'Allow the appeal against the aggregate...