Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: McIver v R [2020] NSWCCA 343 Hearing dates: 24 August 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Before: Johnson J at [1]
Davies J at [5]
Adamson J at [149]Decision: (1) Grant leave to appeal.
(2) Allow the appeal in respect of ground 2.
(3) Quash the convictions entered in the District Court on 13 September 2019.
(4) Quash the sentence imposed by Judge Williams in the District Court on 20 December 2019.
(5) Order a new trial in respect of counts 2, 5, 8, 9 and 10 of the Indictment.
(6) Stand the proceedings into the arraignment list in the District Court at the Downing Centre on 5 February 2021.
Catchwords: COURTS AND JUDGES - bias - apprehended bias –appeal – judge-alone trial - where trial judge recognised a crucial Crown witness as a shop assistant with whom she had dealt over a lengthy period – where the credibility of the witness and the applicant were in issue - where judge should have disqualified herself - where new trial ordered
CRIME - appeals - appeal against conviction - unreasonable verdict - where applicant found guilty of historical sex offences - whether findings of guilt were reasonably open - whether there had been substitution of the applicant for another perpetrator - where a number of other persons who worked at the home were convicted of sexual offences - where evidence does not disclose any basis for the submission that displacement had occurred - where trial judge did not find applicant to be reliable witness - where trial judge formed a favourable impression of complainants notwithstanding some shortcomings in their memories - where no reasonable doubt that the applicant was guilty
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Ford v R [2020] NSWCCA 99
Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98
Helow v Secretary of State for the Home Department [2008] 1 WLR 2416
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
M v The Queen (1994) 181 CLR 487
McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA…
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- AGLC
- McIver v The Queen [2020] NSWCCA 343
- Case
- [2020] NSWCCA 343
- Decision Date
CaseChat Overview and Summary
The court also examined whether the verdict of guilt was unreasonable. The applicant argued that the findings of guilt were not reasonably open on the evidence, suggesting that there might have been a substitution of the applicant for another perpetrator. However, the court found that the evidence did not support this submission, and the trial judge had appropriately assessed the credibility of the witnesses. The judge did not consider the applicant to be a reliable witness and formed a favourable impression of the complainants despite some inconsistencies in their memories. The court concluded that there was no reasonable doubt that the applicant was guilty of the offences.
The court ordered a new trial for the applicant, given the error in the trial judge not recusing herself due to apprehended bias. This decision underscores the importance of impartiality in judicial proceedings and the necessity for judges to avoid even the appearance of bias. The court's ruling highlights the critical role of a fair trial in ensuring the integrity of the criminal justice system.
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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