WG v R; KG v R [2020] NSWCCA 155

WG v R; KG v R [2020] NSWCCA 155

The Court held that the Crown was not obliged to call Dr Nittis as a witness as her evidence was available to the defence, and the obligation does not extend to all available experts, especially where opinions (rather than primary observations) differ. The failure to call Dr Nittis did not result in a miscarriage of justice. The absence of new or fresh evidence presented by the applicants did not raise a reasonable doubt as to guilt nor satisfy the court of their innocence. The verdicts were not unreasonable: the jury was entitled, after observing the witnesses and considering the evidence (including the complainant’s corroborated testimony and physical evidence), to be satisfied beyond...

Jurisdiction
Australia
Judgment Date
09 July 2020
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Decision on Conviction and Sentence Appeals
Outcome
Appeals against conviction and sentence dismissed for both applicants (majority).
Legal Topics
['sexual Offences' 'appeal Against Conviction' 'appeal Against Sentence' 'miscarriage of Justice' 'unreasonable Verdict' 'tendency Evidence' 'jury Discharge Applications' 'sentencing Principles' 'duty to Call Witnesses']
['criminal Law'] ['sexual Offences' 'appeal Against Conviction' 'appeal Against Sentence' 'miscarriage of Justice' 'unreasonable Verdict' 'tendency Evidence' 'jury Discharge Applications' 'sentencing Principles' 'duty to Call Witnesses']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Decision on Conviction and Sentence Appeals

Legal Issues

  1. 1 ['Whether failure to call Dr Nittis resulted in a miscarriage of justice' 'Whether absence of new or fresh evidence led to a miscarriage of justice' 'Whether verdicts were unreasonable or unsupported by evidence' 'Whether trial judge erred in refusing to discharge jury upon report of juror bullying' 'Whether joint trial and multiplicity of charges prejudiced applicants' 'Whether failure to give separate summing up or divided verdicts was miscarriage of justice' 'Admissibility of tendency evidence against KG' 'Whether sentencing judge erred in not giving weight to prior good character' 'Whether sentences were manifestly excessive' 'Whether sentencing judge erred in relation to non-exculpatory duress, prospects of rehabilitation and victim impact statements']

Ratio Decidendi

The Court held that the Crown was not obliged to call Dr Nittis as a witness as her evidence was available to the defence, and the obligation does not extend to all available experts, especially where opinions (rather than primary observations) differ. The failure to call Dr Nittis did not result in a miscarriage of justice. The absence of new or fresh evidence presented by the applicants did not raise a reasonable doubt as to guilt nor satisfy the court of their innocence. The verdicts were not unreasonable: the jury was entitled, after observing the witnesses and considering the evidence (including the complainant’s corroborated testimony and physical evidence), to be satisfied beyond...

Court Disposition

Appeals against conviction and sentence dismissed for both applicants (majority).

Orders

  • ['WG: Leave to appeal conviction granted; appeal dismissed. Leave to appeal sentence granted; appeal dismissed.' 'KG: Leave to appeal conviction granted; appeal dismissed. Leave to appeal sentence granted; appeal dismissed.']