Hilton John Cawthray v R [2013] NSWCCA 105

Hilton John Cawthray v R [2013] NSWCCA 105

Leave was granted and the appeal was allowed because the trial judge failed to assess the reliability of the complainant's evidence as distinct from her honesty and failed to address the reasonable possibility of confabulation. The trial judge also erred in expanding the factual basis of the indictment by treating the offence as capable of occurring after the appellant had left the complainant's home, when the Crown case had been conducted on the basis that the offence occurred while he lived there, and the finding that he was likely at the house working on the kitchen had no evidentiary basis. These errors caused a miscarriage of justice. A new trial was not required in the interests of...

Jurisdiction
Australia
Judgment Date
09 May 2013
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal Against Convictions Following a Judge Alone District Court Trial
Outcome
Leave to appeal granted; appeal upheld; convictions on both counts quashed; verdicts of acquittal entered.
Legal Topics
['appeal Against Conviction' 'judge Alone Trial' 'aggravated Indecent Assault' 'common Assault' 'reliability of Complainant Evidence' 'warnings Concerning Child Evidence' 'delay in Complaint' 'time as an Essential Particular' 'miscarriage of Justice' 'retrial']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'judge Alone Trial' 'aggravated Indecent Assault' 'common Assault' 'reliability of Complainant Evidence' 'warnings Concerning Child Evidence' 'delay in Complaint' 'time as an Essential Particular' 'miscarriage of Justice' 'retrial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal Against Convictions Following a Judge Alone District Court Trial

Legal Issues

  1. 1 ['Whether the trial judge reversed the onus of proof or erred by forming an initial view that the complainant was believable before applying required warnings.' "Whether the trial judge erred in treating time as not of the essence and in finding that the alleged offence could have occurred after the appellant had left the complainant's home." "Whether the trial judge properly assessed the complainant's evidence for reliability, including the possibility of confabulation, as distinct from honesty." 'Whether the required Murray, Crofts and Evidence Act 1995 s 165A warnings were adequately taken into account in a judge-alone trial.' 'Whether the findings of guilt were unreasonable or could not be supported having regard to the evidence.' 'Whether a new trial should be ordered after the convictions were quashed.']

Ratio Decidendi

Leave was granted and the appeal was allowed because the trial judge failed to assess the reliability of the complainant's evidence as distinct from her honesty and failed to address the reasonable possibility of confabulation. The trial judge also erred in expanding the factual basis of the indictment by treating the offence as capable of occurring after the appellant had left the complainant's home, when the Crown case had been conducted on the basis that the offence occurred while he lived there, and the finding that he was likely at the house working on the kitchen had no evidentiary basis. These errors caused a miscarriage of justice. A new trial was not required in the interests of...

Court Disposition

Leave to appeal granted; appeal upheld; convictions on both counts quashed; verdicts of acquittal entered.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld, conviction on both counts quashed.' 'Verdicts of acquittal be entered.']