Gray v R [2020] NSWCCA 240

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gray v R [2020] NSWCCA 240 Hearing dates: 23 July 2020 Date of orders: 24 September 2020 Decision date: 24 September 2020 Before: Hoeben CJ at CL at [1] Johnson J at [2] Lonergan J at [3] Decision: (1) Leave to appeal on ground 1 is refused. (2) Leave to appeal on ground 2 is granted, but the appeal is dismissed. (3) Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), an order is made that the applicant's sentence should recommence on 24 September 2020. (4) For the purpose of s 18(2) of the Criminal Appeal Act, the Court notes that the period between 2 April 2020 and 23 September 2020 does not count as part of the sentence of imprisonment imposed on 9 October 2019. (5) As a result of the alterations referred to in [149] to [151], the non-parole period will now expire on 18 April 2021 and the sentence will expire on 18 October 2022. (6) The earliest date on which the applicant will be eligible for release on parole is 18 April 2021. (7) The making of these orders confirms the resumption of the sentence imposed in the District Court on 9 October 2019 including the order under s 19 of the Children (Criminal Proceedings) Act that the sentence be served in a detention centre and not a correctional centre for the reasons provided by Haesler SC DCJ as set out at [151]. Catchwords: CRIMINAL LAW — appeal against conviction — whether miscarriage of justice occasioned by admission of evidence of the complainant — whether complainant competent to give evidence CRIMINAL LAW — appeal against conviction — whether evidence capable of supporting guilty verdict Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW) Cases Cited: AZ v R [2018] NSWCCA 294 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 R v Basha (1989) 39 A Crim R 337 R v Gray [2019] NSWDC 550 Texts Cited: --- Category: Principal judgment Parties: John Gray (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: C Wasley (Applicant) B Baker (Respondent)