Kapanadze v R [2017] NSWCCA 69

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kapanadze v R [2017] NSWCCA 69 Hearing dates: 29 March 2017 Date of orders: 13 April 2017 Decision date: 13 April 2017 Before: Hoeben CJ at CL at [1] Walton J at [102 ] R A Hulme J at [103] Decision: (1) In relation to the conviction appeal, I would refuse leave under rule 4 of the Criminal Appeal Rules for the appellant to rely upon Ground 1 and I would dismiss the appeal in relation to Grounds 2 and 4. (2) In relation to the application for leave to appeal against sentence, I would grant leave to appeal against sentence but dismiss the appeal. Catchwords: CRIMINAL LAW – conviction appeal – one count of aggravated sexual assault (person under 16), one count of aggravated indecent assault and two counts of attempt aggravated sexual intercourse – whether tendency evidence properly admitted – whether evidence should have been admitted despite absence of objection – probative value of evidence to be balanced against unfair prejudice – non responsive prejudicial answer by expert under cross-examination – whether jury should have been discharged – whether direction to disregard answer adequate – whether R v Markuleski direction should have been given – conviction appeal dismissed – application for leave to appeal against sentence – whether special circumstances should have been found – leave to appeal granted but appeal against sentence dismissed. Legislation Cited: Crimes Act 1900 (NSW) – ss 61J(1), 61M(2), 61P, Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B) Evidence Act 1995 (NSW) ss 66, 97(1)(b), 137 Criminal Appeal Rules (NSW) – r 4 Cases Cited: Collier v R [2012] NSWCCA 213 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Doney v The Queen [1990] HCA 51; 171 CLR 207 House v The King [1936] HCA 40; 55 CLR 499 IMM v The Queen [2016] HCA 14; 257 CLR 300 Penza and Di Maria v Regina [2013] NSWCCA 21 Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 Poniris v R [2014] NSWCCA 100 Potts v R [2012] NSWCCA 229; 227 A Crim R 217 Qing An v Regina [2007] NSWCCA 53 R v FDP [2008] NSWCCA 317; 74 NSWLR 645 R v Kapanadze (District Court, Townsden DCJ, 1 December 2014, unrep) R v Kapanadze (District Court, Townsden DCJ, 10 December 2014, unrep) R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Regina v Fidow [2004] NSWCCA 172 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Steve v Regina [2008] NSWCCA 231; 189 A Crim R 68 Tieu v R [2016] NSWCCA 111 TO v R [2017] NSWCCA 12 Category: Principal judgment Parties: Murad Kapanadze – Appellant Regina – Respondent Crown Representation: Counsel: A Radojev – Appellant E Balodis – Respondent Crown