SA v R [2024] NSWCCA 50

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SA v R [2024] NSWCCA 50 Hearing dates: 1 March 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Before: Ward P at [1] Davies J at [2] Garling J at [55] Decision: (1) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against conviction – three counts of indecent assault, sexual assault and sexual touching against younger sister – complainant aged between 12 and 17 years – where complainant's police statement disclosed earlier instances of abuse at age nine – admitted as context evidence at trial – where evidence went to complainant's continuing fear and delay in complaint – whether trial judge erred by admitting part of the context evidence involving fellatio – whether act of fellatio exceeded gravity of the counts of indictment because of the complainant's young age – where no submission to that effect was made at trial – where ground of appeal alleged error when no objection taken at trial as to portions of context evidence – application of r 4.15 of the Criminal Appeal Rules – trial judge properly considered the test in s 137 of the Evidence Act – where proper anti-tendency directions were given – no miscarriage of justice demonstrated – no error in admitting the context evidence – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) ss 61J, 61KC, 61M, 66A Evidence Act 1995 (NSW) s 137 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Cases Cited: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Flood-Smith v R [2018] NSWCCA 103 Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McIlwraith v R [2020] NSWCCA 274 Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Blick [2000] NSWCCA 51; (2001) 111 A Crim R 326 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Texts Cited: Nil Category: Principal judgment Parties: SA (Appellant) The King (Respondent) Representation: Counsel: B Levet (Appellant) J Styles (Respondent)