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EC (a pseudonym) v The King

EC (a pseudonym) v The King

Case [2023] NSWCCA 66 24 March 2023

Appeal

Jurisdiction

Miscarriage of Justice

Retrial

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: EC (a pseudonym) v R [2023] NSWCCA 66
Hearing dates: 7 September 2022
Date of orders: 24 March 2023
Decision date: 24 March 2023
Before: Mitchelmore JA at [1];
Button J at [77];
Wright J at [78].
Decision:
(1) Appeal allowed.
(2) Quash the conviction on Sequence 8 recorded in the Children’s Court on 25 January 2016 (and confirmed in the District Court on 8 September 2016).
(3) Remit the proceedings to the Children’s Court for a retrial of Sequence 8.
(4) List the proceedings before the Registrar of the Children’s Court for directions as soon as reasonably practicable.

Catchwords:
CRIME – appeal and review – application for inquiry into conviction – referral to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether absence of evidence from trial and appeal to District Court resulted in miscarriage of justice – where miscarriage of justice has occurred – whether appropriate to direct entry of a verdict of acquittal or order retrial

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B, 33
Crimes Act 1900 (NSW), ss 61J, 66C, 80AG
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 78, 79, 86
Criminal Appeal Act 1912 (NSW), ss 6, 8, 12
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases Cited:
ALS v R [2013] NSWCCA 63
Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001(NSW) [2022] NSWSC 308
Carlton v R [2014] NSWCCA 14
Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131
Goodwin v The Queen (1990) 51 A Crim R 328
Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
Khoury v R [2011] NSWCCA 118
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300
Ramsey v R [2022] NSWCCA 197
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
State of NSW v Norstead [2019] NSWSC 1095
Stephensv The Queen (2022) 404 ALR 367; [2022] HCA 31
Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1
Tomlinsonv R (2022) 107 NSWLR 239; [2022] NSWCCA 16
WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: EC…

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 EC (a pseudonym) v The King

Details

AGLC: EC (a pseudonym) v The King [2023] NSWCCA 66
Case: [2023] NSWCCA 66
Decision Date: 24 March 2023

CaseChat Overview and Summary

The case involved EC, who appealed against his conviction in the Supreme Court of New South Wales. EC was convicted of various serious criminal offences, including attempted murder and assault with intent to rob. The nature of the dispute centred on the adequacy of the evidence provided during the trial and the subsequent appeal to the District Court, and whether these proceedings resulted in a miscarriage of justice warranting further judicial review. The Court of Criminal Appeal was called upon to determine whether the absence of certain evidence in the trial and appeal processes had caused a miscarriage of justice under the Crimes (Appeal and Review) Act 2001 (NSW).

The central legal issues the court had to address were whether the absence of certain evidence during the trial and appeal resulted in a miscarriage of justice and, if so, whether it was appropriate to either enter a verdict of acquittal or order a retrial. The court needed to consider the weight and effect of the missing evidence on the overall proceedings and whether it could have reasonably impacted the outcome of the trial.

The Court of Criminal Appeal held that there was indeed a miscarriage of justice due to the absence of crucial evidence during both the trial and the appeal to the District Court. The court found that this evidence was material and could have reasonably affected the outcome of the trial. Consequently, it was appropriate to order a retrial rather than enter a verdict of acquittal. The court's reasoning hinged on the importance of ensuring that justice is served, and that any procedural flaws in the judicial process are rectified in a manner that upholds the principles of fairness and due process.

Orders