Citation: Legg v R [2013] NSWCCA 74
Court: Court of Criminal Appeal, New South Wales
Date: 21 March 2013
Judge(s): Basten JA; Simpson J; Blanch J
Background
The appellant had been convicted on 11 November 2011 of persistent sexual abuse of a child, an offence under s 66EA(1) of the Crimes Act 1900. The conviction followed a trial in which the complainant gave evidence.
The appellant appealed against that conviction, raising four grounds. At the hearing, the most substantial ground, that the verdict was unreasonable, was abandoned by counsel.
Legal Issues
- Whether the trial judge followed the correct procedures before permitting the complainant to give unsworn evidence
- Whether any remaining grounds of appeal required determination given the outcome of the first ground
Decision
The first ground of appeal focused on the procedures the trial judge undertook when allowing the complainant to give unsworn evidence. Detailed written submissions were filed, and the Crown conceded that the trial judge had not followed the required procedures correctly, thus substantiating the ground.
All three judges read the written submissions and the Crown's concession. The Court was satisfied that the concession was properly made and ought to be accepted. Given that conclusion, the appellant's counsel did not press the remaining grounds.
Because the first ground succeeded, the Court did not need to examine the other pleaded grounds. The conviction could not stand, and a new trial was ordered.
Orders Made
- The appeal is allowed
- The conviction is quashed
- A new trial is ordered
Key Takeaways
- Proper procedural compliance is required before a trial judge may permit a child complainant to give unsworn evidence; failure to follow those procedures can vitiate a conviction.
- The Court of Criminal Appeal accepted the Crown's concession that the error was substantiated, noting that the court's role includes independently assessing whether a Crown concession is properly made before acting on it.
- Where an appeal succeeds on an early ground, remaining grounds need not be determined.
- A quashed conviction for persistent sexual abuse under s 66EA(1) of the Crimes Act 1900 does not necessarily end the proceedings; the court may order a new trial rather than simply acquitting the appellant.
- In allowing the appeal, the Court confirmed that procedural fairness in the taking of evidence from vulnerable witnesses is a matter that goes to the validity of a conviction itself.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66EA(1) (persistent sexual abuse of a child)
Cases cited: No cases were cited in the judgment as provided.