Lever (a pseudonym) v R [2018] NSWCCA 107

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lever (a pseudonym) v R [2018] NSWCCA 107 Hearing dates: 9 March 2018 Decision date: 01 June 2018 Before: Basten JA at [1]; Johnson J at [80]; Campbell J at [82] Decision: (1) Refuse leave to rely upon grounds 3 and 4 pursuant to Criminal Appeal Rules, r 4.

(2) Grant the applicant leave to appeal against convictions with respect to grounds 1 and 2.

(3) Dismiss the appeal against convictions.

(4) Refuse leave to appeal against sentence. Catchwords: CRIME – appeal against convictions – aggravated sexual assault against child under 16 years – whether conviction on eight counts inconsistent with acquittal on further counts – whether convictions unsafe or unsupported by the evidence

CRIMINAL PROCEDURE – jury directions –complainant's evidence regarding multiple charged acts of aggravated sexual assault –evidence on each count as tendency and context evidence on others –IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 considered

EVIDENCE – significant forensic disadvantage caused by delay – no direction sought – whether absence of direction caused substantial miscarriage of justice – Evidence Act 1995 (NSW), s 165B

EVIDENCE – sexual assault proceeding – sexual assault communications privilege – complaint to general practitioner – applicant refused access to evidence produced under subpoena recording counselling communication between doctor and complainant – leave to lead evidence regarding surrounding circumstances of complaint refused –Criminal Procedure Act 1986 (NSW), ss 298, 299D Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), s 61J Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 295, 296, 297, 298, 299D; Pt 5, Div 2, Ch 6 Evidence Act 1995 (NSW), ss 9, 165, 165A, 165B Jury Directions Act 2015 (Vic), s 40; Pt 4, Div 5