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Casey v The Queen

Casey v The Queen

Case [2020] NSWCCA 177 29 July 2020

Appeal

Miscarriage of Justice

Abuse of Process

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Casey v R [2020] NSWCCA 177
Hearing dates: 10 July 2020
Decision date: 29 July 2020
Before: Hoeben CJ at CL at [1];
Adamson J at [2];
Bellew J at [177]
Decision:
(1) If leave be required to rely on ground 1, grant leave under rule 4 of the Criminal Appeal Rules in respect of that ground.
(2) Grant leave to appeal on grounds 1, 2, 3 and 4.
(3) Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against conviction —miscarriage of justice — directions to jury — failure to give full Markuleski direction
CRIME — appeals — appeal against conviction — miscarriage of justice — where jury hung on several counts at initial trial — where applicant sought stay of all hung counts — where retrial on certain counts occurred — where evidence of complainants in second trial was edited to remove evidence relating to stayed counts and counts in respect of which accused was acquitted at first trial — whether continued prosecution constituted abuse of process occasioning miscarriage of justice
EVIDENCE — tendency evidence — criminal proceedings — evidence of tendency witness relating to uncharged acts — whether evidence has substantial probative value
CRIME — appeals — appeal against conviction — unreasonable verdict

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D, 61E, 78K
Criminal Appeal Act 1912 (NSW), ss 5, 5F
Criminal Appeal Rules, r 4
Criminal Procedure Act1986 (NSW), ss 130A, 293, 306I, 306J
Evidence Act 1995 (NSW), ss 97, 98, 101

Cases Cited:
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
DF v R [2012] NSWCCA 171; (2012) A Crim R 178
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Ford [2006] QCA 142
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Strickland (a pseudonym) v Director of Public Prosecutions(Cth) [2018] HCA 53; (2018) 272 A Crim R 69
The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846

Category: Principal judgment
Parties: John Patrick Casey (Applicant)
Regina
Representation:
Counsel:
P Boulten SC / P Lange / C Parkin (Applicant)
G Newton (Crown)
Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/201591
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court…

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 Casey v The Queen

Details

AGLC: Casey v The Queen [2020] NSWCCA 177
Case: [2020] NSWCCA 177
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the matter of Casey v The Queen, the Court of Appeal was tasked with reviewing the applicant's appeal against conviction on various criminal charges. The applicant contended that a miscarriage of justice occurred due to several procedural errors during the trial process, including the court's failure to fully instruct the jury as per the Markuleski principles. The appeal arose from a criminal trial where the jury was unable to reach a verdict on several counts, leading to a retrial on certain charges. The applicant sought a stay of the counts on which the jury hung, and this was granted. However, during the subsequent retrial, the prosecution presented edited evidence from the complainants, omitting references to the stayed counts and those in respect of which the applicant was acquitted in the first trial. This omission, the applicant argued, constituted an abuse of process resulting in a miscarriage of justice.

The central legal issues addressed by the Court of Appeal involved whether the prosecution's conduct during the retrial constituted an abuse of process, and if the exclusion of certain evidence from the testimony of the complainants in the second trial was appropriate. The Court examined whether the failure to give a full Markuleski direction to the jury at the first trial amounted to a miscarriage of justice, and if the tendency evidence, particularly regarding uncharged acts, had substantial probative value. The Court also considered whether the verdict, given the circumstances, was unreasonable or impossible to uphold.

The Court of Appeal held that the prosecution's decision to exclude certain references from the complainants' testimony in the retrial did not constitute an abuse of process, and thus did not occasion a miscarriage of justice. The Court found that the edited evidence did not unfairly prejudice the applicant, and the jury's ability to reach a verdict was not compromised. Regarding the Markuleski direction, the Court determined that while there was a partial failure to instruct the jury adequately, it did not result in a miscarriage of justice. The evidence of the complainants, including the tendency evidence, was deemed to have substantial probative value, supporting the jury's verdict. Consequently, the Court upheld the conviction, rejecting the applicant's claims of an unreasonable verdict.

Orders