Prasad v R [2020] NSWCCA 349

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Prasad v R [2020] NSWCCA 349 Hearing dates: 11 September 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Before: Macfarlan JA at [1]; Wilson J at [158]; N Adams J at [196] Decision: (1) Grant leave to appeal to the extent necessary. (2) Allow the appeal in respect of the appellant's convictions on Counts 2, 4 and 5. (3) Quash his convictions and enter verdicts of acquittal on those Counts. (4) Dismiss the appeal against the appellant's conviction on Count 3. (5) Allow the appeal against the aggregate sentence imposed on the appellant on 4 February 2019. (6) The appellant is sentenced to 8 years imprisonment, to date from 18 May 2017 and expiring on 17 May 2025; with a non-parole period of 6 years, expiring on 17 May 2023. Catchwords: EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – admission of electronically recorded interview with deceased complainant – approach to be taken in determining reliability of representations in interview – whether primary judge erred in taking "global approach" contrary to Sio v R (2016) 259 CLR 47 EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – whether primary judge erred in finding that representations made in circumstances that make it highly probable they are reliable – relevance of prior inconsistent representations – whether matters relevant to credibility but not part of "circumstances" under s 65(2) EVIDENCE – s 137 Evidence Act exclusion of prejudicial evidence in criminal proceedings – unfair prejudice alleged to arise from inability to cross-examine complainant – whether primary judge took into account an irrelevant consideration in noting the "public interest" in prosecuting serious crimes – danger of unfair prejudice did not outweigh probative value CRIME – appeals – appeal against conviction – unreasonable verdict – sexual assault – whether Crown proved beyond reasonable doubt that complainant did not consent to Counts 2, 4, 5 – open to judge to hold no reasonable doubt as to Count 3 SENTENCING – re-sentence on appeal – offence of aggravated sexual assault – forcible anal rape of cognitively impaired and physically disabled complainant – need for general and specific deterrence Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 Priday v The Queen [2019] NSWCCA 272 R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 You, Jae Bok v The Queen [2020] NSWCCA 71 Category: Principal judgment Parties: Allen Dhirendra Prasad (Appellant) Regina (Respondent) Representation: Counsel: C Smith SC / W de Mars (Appellant) B Hatfield (Respondent)