Name Suppressed v R [2023] NSWCCA 130

Name Suppressed v R [2023] NSWCCA 130

The conviction appeal failed because the applicant had been advised not to bring the Family Court issues into the criminal trial, accepted that advice, and left forensic decisions to counsel; there was a rational explanation for not accusing the mother without a proper foundation and to avoid introducing further complaint evidence, and the applicant did not lose a real chance of acquittal. The sentence appeal failed because the evidence that the conduct was not isolated had been admitted at trial and remained before the sentencing judge; the judge could find beyond reasonable doubt that the offence was not isolated and use that finding only to deny mitigation, not to aggravate the offence.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal From District Court Judge Alone Conviction and Sentence
Outcome
Leave to appeal granted; conviction appeal dismissed; sentence appeal dismissed.
Legal Topics
['sexual Touching of a Child Under the Age of 10 Years' 'incompetence of Counsel' 'miscarriage of Justice' 'cross Examination' 'judge Alone Trial' 'sentencing Fact Finding' 'uncharged Conduct' 'extraneous Material']
['criminal Law' 'criminal Procedure' 'sentencing' 'evidence'] ['sexual Touching of a Child Under the Age of 10 Years' 'incompetence of Counsel' 'miscarriage of Justice' 'cross Examination' 'judge Alone Trial' 'sentencing Fact Finding' 'uncharged Conduct' 'extraneous Material']

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal From District Court Judge Alone Conviction and Sentence

Legal Issues

  1. 1 ["Whether a miscarriage of justice arose because trial counsel did not conduct the defence on the basis that the complainant's mother had encouraged a false allegation to obtain sole care of the complainant." "Whether trial counsel was incompetent in failing to cross-examine the complainant's mother as the alleged originator of the complaint and in submitting that she was honest." 'Whether the sentencing judge erred by taking into account evidence that the offending was not isolated when that evidence was not relied on for the verdict.' 'Whether the sentencing judge made adverse findings of fact on sentence that were not available on the evidence.']

Ratio Decidendi

The conviction appeal failed because the applicant had been advised not to bring the Family Court issues into the criminal trial, accepted that advice, and left forensic decisions to counsel; there was a rational explanation for not accusing the mother without a proper foundation and to avoid introducing further complaint evidence, and the applicant did not lose a real chance of acquittal. The sentence appeal failed because the evidence that the conduct was not isolated had been admitted at trial and remained before the sentencing judge; the judge could find beyond reasonable doubt that the offence was not isolated and use that finding only to deny mitigation, not to aggravate the offence.

Court Disposition

Leave to appeal granted; conviction appeal dismissed; sentence appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Dismiss both the conviction and sentence appeals.']