BD v The Queen (No 2)

The applicants, BD, appealed convictions to the Court of Criminal Appeal of New South Wales. The central dispute concerned whether the interests of justice necessitated a new trial following the quashing of the original convictions.

The Court was required to determine whether admissible evidence existed that was sufficiently cogent to warrant a new trial, and if so, whether an order for a new trial was the most appropriate remedy. The Court also considered constitutional and structural considerations in reaching its determination.

The Court reasoned that where admissible evidence exists that is capable of supporting a charge, an appellate court should ordinarily order a new trial. This approach preserves the roles of both the jury in determining guilt and the prosecuting authority in deciding whether to proceed with a prosecution. An order for acquittal in such circumstances would improperly usurp these functions. Accordingly, the Court ordered a new trial.