Hughes v R [2018] NSWCCA 2

Hughes v R [2018] NSWCCA 2

The trial judge did not err in refusing to discharge the jury because the complainant's single use of the word "again" was not significant in context, was addressed by a clear direction which the jury was capable of understanding and following, and related to counts on which the applicant was acquitted. The allegation of incompetent representation failed because the trial record showed rational and compelling forensic decisions, extensive cross-examination about the sexual relationship and text messages, and no credible explanation by the applicant for highly damaging text messages; no fairly open chance of acquittal was lost. The sentence was not manifestly excessive because the...

Jurisdiction
Australia
Judgment Date
30 January 2018
Procedural Posture
Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal From Convictions and Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal against conviction refused; leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'aggravated Sexual Intercourse Without Consent' 'jury Discharge' 'incompetence of Counsel' 'victim Impact Statement' 'manifestly Excessive Sentence' 'aggravating Factor of Substantial Harm']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'aggravated Sexual Intercourse Without Consent' 'jury Discharge' 'incompetence of Counsel' 'victim Impact Statement' 'manifestly Excessive Sentence' 'aggravating Factor of Substantial Harm']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal From Convictions and Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the trial judge erred in failing to discharge the jury after the complainant used the word "again" in evidence of complaint.' 'Whether incompetent legal representation caused a miscarriage of justice, including alleged failures to advise the applicant about giving evidence, take instructions, cross-examine the complainant, and address text messages.' 'Whether the aggregate sentence of 8 years 6 months with a non-parole period of 6 years was manifestly excessive.' "Whether the sentencing judge erred by taking the complainant's victim impact statement into account to establish the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)."]

Ratio Decidendi

The trial judge did not err in refusing to discharge the jury because the complainant's single use of the word "again" was not significant in context, was addressed by a clear direction which the jury was capable of understanding and following, and related to counts on which the applicant was acquitted. The allegation of incompetent representation failed because the trial record showed rational and compelling forensic decisions, extensive cross-examination about the sexual relationship and text messages, and no credible explanation by the applicant for highly damaging text messages; no fairly open chance of acquittal was lost. The sentence was not manifestly excessive because the...

Court Disposition

Leave to appeal against conviction refused; leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal refused on grounds 1 and 2 (conviction).' 'Leave to appeal granted on grounds 3 and 4 (sentence).' 'Appeal dismissed.']