EE v R [2023] NSWCCA 188

EE v R [2023] NSWCCA 188

Although the applicant identified potential error in the trial judge's summary of the complainant's evidence regarding the complaint to the applicant's parents, the judge's findings were reasonably open on the evidence in view of the ambiguity and limited nature of the complaint. There was no material inadequacy or logical error in fact finding, and the applicant's convictions for assault and sexual intercourse without consent were reasonably supported. In sentencing, the characterisation of the second offence as not spontaneous and unplanned was open, given the context and evidence about prior conduct. No miscarriage of justice was shown and the appeals were rightly dismissed.

Jurisdiction
Australia
Judgment Date
28 July 2023
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Leave and Merits
Outcome
Leave to appeal against conviction and sentence granted; both appeals dismissed.
Legal Topics
['appeal Against Conviction' 'appeal Against Sentence' 'unreasonable Verdict' 'miscarriage of Justice' 'fact Finding in Judge Alone Trial' 'sexual Assault' 'assault' 'sentencing Discretion']
['criminal Law'] ['appeal Against Conviction' 'appeal Against Sentence' 'unreasonable Verdict' 'miscarriage of Justice' 'fact Finding in Judge Alone Trial' 'sexual Assault' 'assault' 'sentencing Discretion']

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Leave and Merits

Legal Issues

  1. 1 ["Whether the trial judge erred in resolving the conflict between complainant's evidence and that of the applicant's parents (conflicting evidence issue)" "Whether the trial judge's verdict was unreasonable (unreasonable verdict issue)" "Whether the sentencing judge erred in finding that count 2 was not 'spontaneous and unplanned' (characterisation issue)"]

Ratio Decidendi

Although the applicant identified potential error in the trial judge's summary of the complainant's evidence regarding the complaint to the applicant's parents, the judge's findings were reasonably open on the evidence in view of the ambiguity and limited nature of the complaint. There was no material inadequacy or logical error in fact finding, and the applicant's convictions for assault and sexual intercourse without consent were reasonably supported. In sentencing, the characterisation of the second offence as not spontaneous and unplanned was open, given the context and evidence about prior conduct. No miscarriage of justice was shown and the appeals were rightly dismissed.

Court Disposition

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

Orders

  • ['Leave to appeal against conviction be granted.' 'The appeal against conviction dismissed.' 'Leave to appeal against the sentence imposed on 5 July 2022 be granted.' 'The appeal against sentence be dismissed.']