Sivell v R [2019] NSWCCA 77

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sivell v R [2019] NSWCCA 77 Hearing dates: 5 September 2018 Date of orders: 17 April 2019 Decision date: 17 April 2019 Before: Hoeben CJ at CL at [1] McCallum J at [2] Beech-Jones J at [3] Decision: (1) The applicant's notice of motion filed 17 September 2018 be dismissed;

(2) Leave to appeal in respect of grounds 2 and 3 of the appeal against conviction be refused;

(3) The appeal against conviction be dismissed;

(4) The applicant be granted an extension of time in which to seek leave to appeal against his sentence until 7 September 2018;

(5) Grant leave to appeal against sentence but the appeal be dismissed. Catchwords: CRIME – Appeal against conviction – Applicant convicted of 19 sexual offences against children – Apprehended bias – Trial judge's consideration of applicant's criminal history – Trial judge's treatment of one complainant during cross-examination – No apprehension arises – Incompetence of Counsel – Failure to subpoena and "track down" witnesses – No miscarriage of justice – Fresh evidence – Request for Court to issue summonses to witnesses – Whether anticipated evidence admissible – Evidence of past medical procedure – Whether anticipated evidence cast doubt on conviction – No evidence casting doubt on guilt of applicant – Appeal against sentence – Sentence not manifestly excessive. Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 Crimes Legislation Amendment (Child Sex Offences) Act 2015 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Ali v R [2005] HCA 8; 214 ALR 1 CUR24 v DPP [2012] NSWCA 65 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Mathews v R [2013] NSWCCA 187 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 MRW v R [2011] NSWCCA 260 Norman v R [2012] NSWCCA 230 Nudd v R [2006] HCA 9 Obeid v R [2017] NSWCCA 221 R v E (2005) 93 SASR 20; [2005] SASC 332 R v M.A.K.; R v M.S.K. [2006] NSWCCA 381 R v Saleam (1989) 16 NSWLR 14 R v Sivell [2009] NSWCCA 286 Ratten v R [1974] HCA 35; 131 CLR 510 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 TKWJ v R [2002] HCA 46; 212 CLR 124 ZA v R [2017] NSWCCA 132 Category: Principal judgment Parties: Andrew John Sivell (Applicant) The Crown (Respondent) Representation: Counsel: Self-Represented (Applicant) Ms S Kluss (for the Applicant on the Sentence Appeal) Mr E Balodis (Respondent)