Van Gestel v R [2023] NSWCCA 263

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Van Gestel v R [2023] NSWCCA 263 Hearing dates: 29 September 2023 Decision date: 20 October 2023 Before: Leeming JA at [1]; Davies J at [66]; Wilson J at [67] Decision: 1. Grant leave to appeal, confined to proposed grounds 1 and 3, and otherwise refuse leave. 2. Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – applicant convicted of eight counts of indecent assault – all offending decades old – whether evidence of complaint, many years after the event, was admissible as fresh in the complainants' memories under Evidence Act 1995 (NSW), s 66 – whether evidence of complaint admissible as evidence re-establishing credibility under Evidence Act, s 108(3) – whether trial judge ruled evidence admissible at pre-trial hearing and counsel thereafter acquiesced in evidence being led – whether trial judge obliged to intervene when no objection was made to complaint evidence – held that trial judge had made no ruling, trial judge was not obliged to intervene, and evidence would have been admissible pursuant to s 108(3) even if objection had been taken CRIME – appeals – appeal against conviction – indecent assault – elements of offence – whether mental element of indecent intention in addition to intention of committing the assault – where no such direction sought at trial – where authorities bearing on issue not addressed – whether sentence for these offences subsumed by sentence imposed for other offending – leave refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury's verdicts unreasonable having regard to inconsistencies, age of complainants and absence of complaint for many years – appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61E(1), 61M(1), 578A, 578C Evidence Act 1995 (NSW), ss 66, 108 Sexual Offences Act 1956 (UK), s 14(1) Supreme Court (Criminal Appeal) Rules 2021, r 4.15 Cases Cited: Clay (a Pseudonym) v The Queen (2014) 43 VR 405; [2014] VSCA 269 Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; 396 ALR 545 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Harkin v R (1989) 38 A Crim R 296 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Court [1989] 1 AC 28 Category: Principal judgment Parties: Robert Van Gestel (Applicant) Rex (Respondent) Representation: Counsel: J Stratton SC (Applicant) G Newton SC (Respondent)