Valentine v R [2023] NSWCCA 43

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Valentine v R [2023] NSWCCA 43 Hearing dates: 19 October 2022 Date of orders: 10 March 2023 Decision date: 10 March 2023 Before: Basten AJA at [1]; Button J at [250]; Wilson J at [253] Decision: (1) Grant the applicant leave to appeal from the convictions entered in the District Court on the indictment dated 11 February 2019. (2) Uphold the appeal with respect to the conviction on count 24, quash the conviction and enter a verdict of acquittal on that count. (3) With respect to the aggregate sentence – (a) grant leave to the appellant to file written submissions with respect to any possible reduction of the aggregate sentence within four weeks of the date of this judgment; (b) grant leave to the Director to file submissions in reply within six weeks of the date of this judgment; (c) direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 14 days of the filing of the Director's submissions in response. (4) Otherwise dismiss the appeal. Catchwords: CRIMINAL PROCEDURE – appeal against convictions for sexual offences – appeal filed months late – application for extension of time – 21 proposed grounds of appeal CRIME – appeal – ground – unreasonableness of verdict – use of tendency evidence on appeal to assess whether reasonable doubt to be entertained CRIME – appeal – unreasonable verdicts – elevating subjective demeanour-based findings over intrinsic value of evidence – failure to apply forensic prejudice in accepting complainants' evidence – global rejection of appellant's evidence EVIDENCE – admissibility of historic complaint – admission to prove truth of content – Evidence Act 1995 (NSW), s 66 EVIDENCE – disallowance of cross-examination suggesting other sexual activity – defence that other officer raped victim – relevance of questions – whether other activity at or about the time of the charged offence – whether other activity and charged offence part of a connected set of circumstances – Criminal Procedure Act 1986 (NSW), s 293 Legislation Cited: Child Welfare Act 1939 (NSW), s 72 Crimes Act 1900 (NSW), ss 61, 63, 76 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), s 293 Evidence Act 1995 (NSW), ss 55, 66, 116 Cases Cited: Dansie v The Queen [2022] HCA 25; 96 ALJR 728 Dansie v The Queen [2020] SASCFC 103 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GS v R [2022] NSWCCA 225 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Morgan (1993) 30 NSWLR 543 Category: Principal judgment Parties: Frank Valentine (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel: Ms A Francis (Appellant) Mr E Balodis (Respondent)