Van Gestel v R [2023] NSWCCA 263

Van Gestel v R [2023] NSWCCA 263

No error was shown in the admission of complaint evidence as it was admissible for credibility under s 108(3) of the Evidence Act 1995 (NSW) once the credibility of the complainants was challenged; no duty on trial judge to intervene; existing NSW precedent does not require a direction on indecent intention except where assault is equivocal; verdicts were open to the jury on the evidence despite delays and inconsistencies.

Jurisdiction
Australia
Judgment Date
20 October 2023
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Judgment
Outcome
Leave to appeal granted (in part); appeal dismissed.
Legal Topics
['appeal Against Conviction' 'admission of Complaint Evidence' 'indecent Assault' 'credibility of Complainants' 'jury Directions' 'unreasonable Verdict']
['criminal Law'] ['appeal Against Conviction' 'admission of Complaint Evidence' 'indecent Assault' 'credibility of Complainants' 'jury Directions' 'unreasonable Verdict']

Case Brief

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Procedural Posture

Criminal Appeal / Application for Leave to Appeal Judgment

Legal Issues

  1. 1 ["Whether evidence of complaint, made many years after the events, was admissible as 'fresh in the memory' under Evidence Act 1995 (NSW), s 66" 'Whether complaint evidence was admissible to re-establish credibility under Evidence Act 1995 (NSW), s 108(3)' 'Whether the trial judge was obliged to intervene when no objection was made to complaint evidence' 'Whether jury directions had to include requirement of indecent intention (mental element) beyond intention to assault' 'Whether verdicts were unreasonable due to inconsistencies, age of complainants, and delay']

Ratio Decidendi

No error was shown in the admission of complaint evidence as it was admissible for credibility under s 108(3) of the Evidence Act 1995 (NSW) once the credibility of the complainants was challenged; no duty on trial judge to intervene; existing NSW precedent does not require a direction on indecent intention except where assault is equivocal; verdicts were open to the jury on the evidence despite delays and inconsistencies.

Court Disposition

Leave to appeal granted (in part); appeal dismissed.

Orders

  • ['Grant leave to appeal, confined to proposed grounds 1 and 3, and otherwise refuse leave.' 'Appeal dismissed.']