Marco v The King

Case [2023] NSWCCA 307


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Marco v R [2023] NSWCCA 307
Hearing dates: 10 November 2023
Date of orders: 6 December 2023
Decision date: 06 December 2023
Before: Ward P at [1]; Walton J at [126]; Fagan J at [128]
Decision:

1. Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, leave to appeal is refused in respect of ground 1.

2.   Leave to appeal is granted in respect of ground 3.

3.   The appeal is dismissed.

4.   Vary the sentence of imprisonment of 4 years and 4 months imprisonment imposed by Payne DCJ on 26 April 2023, commencing on 26 April 2023 and expiring on 25 August 2027, with a non-parole period of 2 years 9 months expiring on 25 January 2026, to an aggregate sentence of 4 years and 4 months imprisonment commencing on 6 December 2023 and expiring on 5 April 2028, with a non-parole period of 2 years and 9 months, commencing on 6 December 2023 and expiring on 5 September 2026.

5.   The applicant will be eligible for release on parole on 5 September 2026.

Catchwords:

CRIME – Appeals – Appeal against conviction – Sexual assault offences – whether identification direction was erroneous – whether guilty verdicts were unreasonable

Legislation Cited:

Crimes Act 1900 (NSW), ss 61I, 61KC

Criminal Appeal Act 1912 (NSW), ss 5, 6, 578A

Evidence Act 1995 (NSW), s 116, Dictionary

Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 4, 4.15

Cases Cited:

AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

AS v R [2022] NSWCCA 291

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Bolton v R [2023] NSWCCA 211

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233

Greenhalgh v R [2017] NSWCCA 94

Hamzeh v R [2022] NSWCCA 232

Hanna v R [2023] NSWCCA 182

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Houshyar v R [2022] NSWCCA 245

JL v R [2023] NSWCCA 99

Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321

Latu v R [2023] NSWCCA 19

Lee v R [2023] NSWCCA 203

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Peacock v The King (1911) 13 CLR 619; [1911] HCA 66

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v…

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AGLC
Marco v The King [2023] NSWCCA 307
Case
[2023] NSWCCA 307
Decision Date

CaseChat Overview and Summary

The matter before the court involved an appeal against the conviction of a defendant, Marco, for various sexual assault offences. The case was heard in the High Court of Australia. The central issue was whether the trial judge erred in giving a particular direction to the jury regarding the identification of the accused, and whether the verdicts of guilty were unreasonable.

The legal issues before the court included whether the trial judge's direction to the jury on the identification of the accused was erroneous, and whether the jury's verdicts of guilty were unreasonable given the evidence presented. The appellant argued that the identification direction was flawed, and that the verdicts were not supported by the evidence. The central question was whether these alleged errors were significant enough to warrant a new trial.

The court found that the trial judge's direction to the jury regarding the identification of the accused was not erroneous. It was determined that the judge's direction appropriately balanced the need to consider the circumstances of the identification with the requirement that the prosecution prove the accused's identity beyond reasonable doubt. The court also held that the jury's verdicts of guilty were not unreasonable, as there was sufficient evidence to support the jury's conclusion. The court concluded that the trial was conducted fairly, and that the verdicts were properly reached.

In light of the above findings, the appeal was dismissed. The court upheld the conviction and sentence imposed by the trial court, confirming the appellant's guilt on the charges of sexual assault.

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

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Ratio Decidendi

Legal Principle Established

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