FX v R; GX v R [2020] NSWCCA 189

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FX v R; GX v R [2020] NSWCCA 189 Hearing dates: 19 February 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Before: Johnson J at [1] Price J at [356] Davies J at [357] Decision: FX:

1. Refuse leave under Rule 4 Criminal Appeal Rules to rely upon Grounds 3, 4 and 5.

2. Grant leave to appeal against conviction.

3. Dismiss the appeal against conviction.

GX:

1. Grant leave under Rule 4 Criminal Appeal Rules to rely upon Ground 5.

2. Grant leave to appeal against conviction.

3. Allow the appeal on Grounds 2, 5 and 6.

4. Quash the convictions of GX on each of Counts 11, 12, 13, 14, 15, 16, 17 and 18.

5. Order that there be a new trial.

6. Direct that GX's matter be listed in the District Court Arraignment List on Friday, 14 August 2020 at 9.30 am. Catchwords: CRIME - appeals against conviction - joint trial of applicants for sexual offences committed against complainant - applicants were uncles of complainant - prosecution did not allege applicants committed offences as part of a joint criminal enterprise - claim on appeal that requirements for joint trial of applicants under s.29(2) Criminal Procedure Act 1986 were not met - whether applicants consented to joint trial under s.29(2)(a) Criminal Procedure Act 1986 - consideration of ss.21 and 29 Criminal Procedure Act 1986 - held that applicants consented to joint trial - whether miscarriage of justice arising from joint trial of applicants - whether trial Judge gave necessary directions to jury - whether miscarriage of justice arising from prosecutor's closing address - application of Rule 4 Criminal Appeal Rules - leave granted to one applicant (GX) under Rule 4 - claim of unfairness by GX arising from submissions made by prosecutor to jury concerning from cross-examination of FX where propositions not put to GX in cross-examination - prosecutor's submission repeated in summing up - no application made by applicants' trial counsel for further directions - leave granted to GX under Rule 4 and grounds of appeal upheld - convictions quashed and new trial ordered for GX - no other grounds of appeal established - FX refused leave under Rule 4 - FX's appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 Evidence Act 1995 Justices Act 1902 Criminal Appeal Rules Indictments Act 1915 (UK) Cases Cited: Allen v R [2020] NSWCCA 173 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 Davis v R [2017] NSWCCA 257 De Jesus v The Queen (1986) 61 ALJR 1; [1986] HCA 65 Decision Restricted [2019] NSWCCA 276 DR v R [2019] NSWCCA 320 Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455 GDD v R [2010] NSWCCA 62 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Greenhalgh v R [2017] NSWCCA 94 Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 ML v R [2015] NSWCCA 27 Osman v R [2006] NSWCCA 196 Packett v The King (1937) 58 CLR 190; [1937] HCA 53 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Birks (1990) 19 NSWLR 677 R v Darwiche & Ors [2006] NSWSC 929 R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 R v Middis (Supreme Court, Hunt J, 27 March 1991, unreported) R v Pham [2004] NSWCCA 190 R v Qaumi and Ors (No. 3) (Severance and separate trial) [2016] NSWSC 15 R v Sepulveda [2003] NSWCCA 131 Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 Stevancevic v Milson (1986) Petty Sessions Review 3411 (Finlay J, Supreme Court of NSW, 21 May 1986) Sutton v The Queen (1983-1984) 152 CLR 528; [1984] HCA 5 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Texts Cited: Young, "The Law of Consent", Law Book Company Limited, 1986 Category: Principal judgment Parties: FX and GX (Applicants) Regina (Respondent) Representation: Counsel: Mr P Lange (Applicant FX) Mr S Odgers SC (Applicant GX) Ms M Millward (Respondent)