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: Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001(NSW) [2022] NSWSC 308
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
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
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
Category: Principal judgment Parties: EC…
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- AGLC
- EC (a pseudonym) v The King [2023] NSWCCA 66
- Case
- [2023] NSWCCA 66
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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