Long (a pseudonym) v R [2021] NSWCCA 212

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Long (a pseudonym) v R [2021] NSWCCA 212 Hearing dates: 4 August 2021 Decision date: 03 September 2021 Before: Basten JA at [1]; Adamson J at [30]; Campbell J at [145] Decision: (1) Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5. (2) Refuse leave to appeal in respect of ground 6. (3) Otherwise grant leave to appeal. (4) Dismiss the appeal. Catchwords: CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim's claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as "independent" was not capable of having any real bearing on the jury's understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested "video transcripts" — applicant's trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of "appropriate concessions" — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A Crimes Act 1900 (NSW), ss 61HA, 61M, 66A, 66C, 578A Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 306M, 306X, 306Z, 306ZI Evidence Act 1995 (NSW), s 164 Jury Act 1977 (NSW), s 55C Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: AB v R [2019] NSWCCA 82 DBG v R [2002] NSWCCA 328; 133 A Crim R 227 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55 Jarrett v R [2014] NSWCCA 140 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 145 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v ACK [2000] NSWCCA 180 R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 29 R v Murray (1987) 11 NSWLR 12 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Osborne [1905] 1 KB 551 SB v R [2020] NSWCCA 207 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Texts Cited: Criminal Trial Courts Bench Book (NSW) Category: Principal judgment Parties: Long (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: S Kluss (Applicant) G Newton (Respondent)