Mol v R [2017] NSWCCA 76

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mol v R [2017] NSWCCA 76 Hearing dates: 8 February 2017 Decision date: 28 April 2017 Before: Payne JA at [1]; Johnson J at [95]; Fullerton J at [96]. Decision: (1) Time to file the notice of appeal extended to 1 September 2016. (2) Leave to appeal against conviction on grounds 1 and 2 of the notice of appeal granted. (3) Appeal against conviction on grounds 1 and 2 of the notice of appeal dismissed. (4) Leave to appeal against conviction on grounds 3 and 4 of the notice of appeal refused under r 4 of the Criminal Appeal Rules. (5) Leave to appeal against sentence refused. Catchwords: CRIMINAL LAW – appeal against conviction – three complainants – six counts of indecent assault – five counts of sexual intercourse without consent –– tendency evidence – whether trial judge erred in admitting tendency evidence – whether probative value of tendency evidence outweighed by prejudicial effect – whether an order should have been made for separate trials – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice as a result of primary judge withdrawing a direction to the jury regarding consent – leave to appeal refused – appeal dismissed

CRIMINAL LAW – appeal against conviction – whether adequate directions given by primary judge in responding to a note from the jury regarding consent – leave to appeal refused – appeal dismissed

CRIMINAL LAW – appeal against sentence – relevance of breach of trust as aggravating factor – relevance of abusing professional position so as to warrant less weight being given for prior good character – relevance of post-offence conduct in assessing seriousness of offence – leave to appeal refused – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Crimes (Sentencing) Procedure Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: BC v R [2015] NSWCCA 327 DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 Holman v The Queen [1970] WAR 2 House v The King (1936) 55 CLR 499 Hughes v R [2015] NSWCCA 330 IMM v R (2016) 257 CLR 300; [2016] HCA 14 KAB v R [2015] NSWCCA 55 Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 R v DMC (2002) 137 A Crim R 246; [2002] NSWCCA 513 R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319 R v Kennedy [2000] NSWCCA 527 R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161 R v Johnson [2005] NSWCCA 186 Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7 Suleman v R [2009] NSWCCA 70 Category: Principal judgment Parties: Mr Pierre Mol (Applicant) Crown (Respondent) Representation: Counsel: Mr T Gartelmann SC (Applicant) Ms M Cinque SC (Respondent)