BC v R [2019] NSWCCA 111

BC v R [2019] NSWCCA 111

The evidence relied on by the Crown for counts 1 to 3 was incapable of proving beyond reasonable doubt that, when aged between 11 and 13, the applicant knew his conduct was seriously or gravely wrong rather than merely naughty or mischievous, so those convictions were unreasonable and had to be quashed. The remaining convictions stood because the complainants' evidence was admissible tendency evidence: the extreme youth of the complainants, the applicant's opportunistic approach, the seeking of consent or cooperation, and the absence of violence or physical threats were sufficiently specific linking features giving the evidence significant probative value, and that value substantially...

Jurisdiction
Australia
Judgment Date
05 June 2019
Procedural Posture
Criminal Appeal Against Conviction and Contingent Appeal Against Sentence / Application for Leave to Appeal and Extension of Time; Conviction Appeal Determined in Part; Resentencing Submissions Deferred
Outcome
Leave to appeal and extension of time granted. Appeal allowed in respect of convictions on counts 1 to 3, which were quashed with verdicts of acquittal entered. Appeal against conviction dismissed for counts 4 to 20. Further submissions on sentence directed before resentencing.
Legal Topics
['child Sexual Assault Offences' 'doli Incapax' 'unreasonable Verdict' 'tendency Evidence' 'severance of Counts' 'aggregate Sentence']
['criminal Law' 'evidence' 'sentencing'] ['child Sexual Assault Offences' 'doli Incapax' 'unreasonable Verdict' 'tendency Evidence' 'severance of Counts' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Contingent Appeal Against Sentence / Application for Leave to Appeal and Extension of Time; Conviction Appeal Determined in Part; Resentencing Submissions Deferred

Legal Issues

  1. 1 ['Whether the convictions for counts 1 to 3 were unreasonable because the Crown failed to rebut the doli incapax presumption.' 'Whether evidence of each complainant was admissible as tendency evidence in respect of counts involving the other complainants under ss 97 and 101 of the Evidence Act 1995 (NSW).' 'Whether the quashing of counts 1 to 3 affected the use of the evidence supporting those counts as tendency evidence for the remaining counts.' 'Whether the applicant should be resentenced if counts 1 to 3 were quashed.']

Ratio Decidendi

The evidence relied on by the Crown for counts 1 to 3 was incapable of proving beyond reasonable doubt that, when aged between 11 and 13, the applicant knew his conduct was seriously or gravely wrong rather than merely naughty or mischievous, so those convictions were unreasonable and had to be quashed. The remaining convictions stood because the complainants' evidence was admissible tendency evidence: the extreme youth of the complainants, the applicant's opportunistic approach, the seeking of consent or cooperation, and the absence of violence or physical threats were sufficiently specific linking features giving the evidence significant probative value, and that value substantially...

Court Disposition

Leave to appeal and extension of time granted. Appeal allowed in respect of convictions on counts 1 to 3, which were quashed with verdicts of acquittal entered. Appeal against conviction dismissed for counts 4 to 20. Further submissions on sentence directed before resentencing.

Orders

  • ['Grant leave to appeal and extend the time to appeal to 11 May 2018.' "Quash the applicant's convictions for counts 1 to 3 and enter verdicts of acquittal for those counts." 'Dismiss the appeal against conviction in respect of counts 4 to 20.' 'Direct that the applicant file and serve any further submissions as to...