DN v R [2016] NSWCCA 252

DN v R [2016] NSWCCA 252

Leave to raise the conviction ground was granted and an Edwards-type consciousness of guilt direction should have been given because the Crown's address invited the jury to treat the appellant's alleged disposal of the phone, if accepted, as independent evidence corroborating the complainant and as almost indisputable evidence that he committed the s 61O(2A) offence. However, no substantial miscarriage of justice occurred because, on the whole of the evidence, including the recorded conversations, early complaints, the complainant's plan of the appellant's home, the gift of the phone, and the jury's verdict, the appellant's guilt was proved beyond reasonable doubt. The sentence was not...

Jurisdiction
Australia
Judgment Date
10 November 2016
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction and Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against conviction and sentence granted; appeals against conviction and sentence dismissed.
Legal Topics
['consciousness of Guilt Reasoning' 'post Offence Conduct' 'disposal of Evidence' 'jury Directions' 'substantial Miscarriage of Justice' 'manifest Excess' 'objective Seriousness' 'sexual Intercourse With a Person Under 16' 'child Abuse Material']
['criminal Law' 'criminal Procedure' 'sentencing'] ['consciousness of Guilt Reasoning' 'post Offence Conduct' 'disposal of Evidence' 'jury Directions' 'substantial Miscarriage of Justice' 'manifest Excess' 'objective Seriousness' 'sexual Intercourse With a Person Under 16' 'child Abuse Material']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction and Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether leave should be granted under Criminal Appeal Rules r 4 to rely on an omitted jury direction not objected to at trial.' "Whether the Crown's reliance on the appellant's changing his phone number and alleged disposal of his phone required an Edwards-type consciousness of guilt direction." 'Whether the failure to give a consciousness of guilt direction occasioned a substantial miscarriage of justice.' "Whether the sentence for the s 61J(1) offence was manifestly excessive because the trial judge's assessment of objective seriousness was not reasonably open."]

Ratio Decidendi

Leave to raise the conviction ground was granted and an Edwards-type consciousness of guilt direction should have been given because the Crown's address invited the jury to treat the appellant's alleged disposal of the phone, if accepted, as independent evidence corroborating the complainant and as almost indisputable evidence that he committed the s 61O(2A) offence. However, no substantial miscarriage of justice occurred because, on the whole of the evidence, including the recorded conversations, early complaints, the complainant's plan of the appellant's home, the gift of the phone, and the jury's verdict, the appellant's guilt was proved beyond reasonable doubt. The sentence was not...

Court Disposition

Leave to appeal against conviction and sentence granted; appeals against conviction and sentence dismissed.

Orders

  • ['Grant leave to appeal against conviction;' 'Appeal against conviction dismissed;' 'Grant leave to appeal against sentence;' 'Appeal against sentence dismissed.']