Astill v R [2024] NSWCCA 118

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Astill v R [2024] NSWCCA 118 Hearing dates: 19 June 2024 Date of orders: 08 July 2024 Decision date: 08 July 2024 Before: Bell CJ at [1]; Stern JA at [101]; Button J at [102]. Decision: 1. Refuse leave to appeal in relation to grounds 1 and 2 of the appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 2. Refuse leave to appeal against sentence. Catchwords: CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant's own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW) CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW) CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) s 253G(2)(a) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) Crimes Act 1900 (NSW) ss 61J, 61M, 61O Criminal Appeal Act 1912 (NSW) s 6(1) Criminal Procedure Act 1986 (NSW) ss 161A, 166 Evidence Act 1995 (NSW) ss 66, 108, 136 Jury Directions Act 2015 (Vic) ss 61-62 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Cases Cited: Abusafiah v R (1991) 24 NSWLR 531 at 536; (1991) 56 A Crim R 424 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 Carbone v The King (No 2) [2024] NSWCCA 7 CL v R [2014] NSWCCA 196 Cox v R [2022] NSWCCA 66 CV v The King [2022] NSWCCA 264 Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 Day v Rex (No 2) [2023] NSWCCA 312 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Director of Public Prosecutions v Marks [2005] VSCA 277 Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 Director of Public Prosecutions v Roder [2023] VSCA 262 Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 Greenhalgh v R [2017] NSWCCA 94 Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 JS v The Queen [2022] NSWCCA 145 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PD v R [2012] NSWCCA 242 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Bohannan [2010] EWCA Crim 2261 R v Brown [2012] NSWCCA 199 R v Obeid (No 12) [2016] NSWSC 1815 R v Rae [2013] NSWCCA 9 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 Vaughan v R [2020] NSWCCA 3 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Wayne Gregory Astill (Applicant) The Crown (Respondent) Representation: Counsel: