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AB v The King

AB v The King

Case [2023] NSWCCA 165 3 July 2023

Appeal

Miscarriage of Justice

Lies Direction

Zoneff Direction

Majority Verdict

Jury Act 1977 (NSW), s 55F(2)(b)

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB v R [2023] NSWCCA 165
Hearing dates: 27 March 2023
Date of orders: 3 July 2023
Decision date: 03 July 2023
Before: Beech-Jones CJ at CL at [1]
N Adams J at [79]
Yehia J at [80]
Decision:
(1)   The time in which the application for leave to appeal may be brought be extended up to and including 16 September 2022.
(2)   The applicant be granted leave to raise grounds 1 and 2 of the Notice of Appeal.
(3)   Ground 1 be upheld.
(4)   The appeal be allowed.
(5) The applicant’s conviction for an offence under s 66A(1) of the Crimes Act 1900 (NSW) entered on 10 September 2021 be set aside.
(6)   In lieu thereof a verdict of acquittal be entered.

Catchwords:
CRIMES — appeals — appeal against conviction — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge’s failure to give a “lies direction” or “Zoneff direction” in response to Crown Prosecutor’s submissions — Crown Prosecutor’s reliance on applicant’s silence and alleged lie to rebut the presumption of doli incapax involved appeal to consciousness of guilt reasoning — to ensure a fair trial it was necessary for trial judge to have given an Edwards or Zoneff direction — majority verdict — Jury Act 1977 (NSW), s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — leave to appeal allowed — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the Crown having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Companies (New South Wales) Code 1981 (NSW)
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Jury Act 1977 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
AK v R [2022] NSWCCA 175
Anderson v The Queen (1991) 53 A Crim R 421
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
BP v R [2006] NSWCCA 172
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114
KE v R [2021] NSWCCA 119
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Mark McKey v R [2012] NSWCCA 1
R v Andrew Button (a pseudonym) [2021] NSWDC 829
Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142
Zoneff v The Queen (2000)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v The King

Details

AGLC: AB v The King [2023] NSWCCA 165
Case: [2023] NSWCCA 165
Decision Date: 03 July 2023

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the applicant, AB, against a decision in the Supreme Court of New South Wales. AB was convicted of sexual intercourse with a child under 10 years of age. AB was 13 years old at the time of the offending. AB sought to appeal against the conviction on the basis that the trial judge failed to give a "lies direction" or a "Zoneff direction" in response to the Crown Prosecutor’s submissions. The Crown Prosecutor had relied on AB’s silence and an alleged lie to rebut the presumption of doli incapax, which involved an appeal to consciousness of guilt reasoning. AB submitted that the trial judge should have directed the jury on the proper use of the Crown Prosecutor’s submissions to ensure a fair trial.
The court found that it was necessary for the trial judge to have given an Edwards or Zoneff direction to ensure a fair trial. The court also considered whether it was open to the trial judge to conclude that the preconditions for taking a majority verdict were satisfied. The court found that in the circumstances, it was open to the trial judge to be satisfied of the requirements of s 55(2)(b) of the Jury Act 1977 (NSW). The court allowed leave to appeal and allowed the appeal. The court considered whether it was appropriate to enter a retrial or an acquittal. The court found that notwithstanding the Crown having a reasonably strong case, the cause of the error favoured entering an acquittal. Accordingly, the court acquitted AB.
This case highlights the importance of trial judges giving appropriate directions to juries in criminal trials to ensure a fair trial. The court found that the trial judge’s failure to give a lies or Zoneff direction in this case occasioned a miscarriage of justice. The court also considered the appropriate remedy in circumstances where an appeal against conviction is allowed. In this case, the court found that an acquittal was the appropriate remedy.

Orders