Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: MS v R [2017] NSWCCA 252 Hearing dates: 8 September 2017 Date of orders: 08 September 2017 Decision date: 27 October 2017 Before: Macfarlan JA at [1];
Beech-Jones J at [71];
Wilson J at [73]Decision: Order on each appeal:
(1) Quash the appellant’s convictions.
(2) Direct that the appellant be retried.Catchwords: CRIMINAL PROCEDURE – unrepresented accused – whether appropriate for Crown Prosecutor to make a closing address – whether trial judge adequately explained aspects of the trial process to the appellant
CRIMINAL PROCEDURE – evidence of child complainants in sexual offence proceedings – whether recording of complainant’s interview should have been tendered as an exhibit and given to the jury – consequences of failure to give warning required by s 306X of the Criminal Procedure Act 1986 (NSW)
CRIMINAL PROCEDURE – evidence of complainants in sexual offence proceedings where accused unrepresented – consequences of failure to give warning required by s 294A(7) of the Criminal Procedure Act 1986 (NSW) – consequences of failure to give the appellant an opportunity to reformulate questions in cross-examination of complainant conducted by court appointed person
CRIMINAL PROCEDURE – sexual offence proceedings – context evidence – jury not directed not to use context evidence to support tendency reasoning – real risk that jury might have used evidence for impermissible purpose – direction should have been given
APPEALS – appeals against conviction – whether it was open to the court to conclude that the appellant did not receive fair trials by reason of the cumulative effect of irregularities at trial – convictions quashed and new trials orderedLegislation Cited: Criminal Appeal Act 1912 (NSW) s 6
Criminal Appeal Rules r 4
Criminal Procedure Act 1986 (NSW) ss 294A, 306X
Evidence Act 1995 (NSW)Cases Cited: BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hamod v State of New South Wales [2011] NSWCA 375
Hughes v The Queen [2017] HCA 20
JWM v The Queen (2014) 245 A Crim R 538; [2014] NSWCCA 248
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
R v Anastasiou (1991) 21 NSWLR 394
R v ATM [2000] NSWCCA 475
R v E J Smith [1982] 2 NSWLR 608
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
R v Zorad (1990) 19 NSWLR 91
Roach v R (2011) 242 CLR 610; [2011] HCA 12
The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21
TKWJ v R [2002] HCA 46; 212 CLR 124
Toalepai v The Queen [2009] NSWCCA 270
Wilson v The Queen (1970) 123 CLR 334; [1970] HCA…
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- AGLC
- MS v The Queen [2017] NSWCCA 252
- Case
- [2017] NSWCCA 252
- Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal determined that the appellant did not receive a fair trial due to multiple procedural errors. The court found that the trial judge should not have permitted the Crown Prosecutor to make a closing address without the appellant being represented. Additionally, the court held that the trial judge failed to adequately explain the trial process to the appellant, did not provide the recording of the complainant’s police interview to the jury, and omitted to give the required warnings under sections 306X and 294A(7) of the Criminal Procedure Act. The court also concluded that the trial judge should have directed the jury not to use context evidence for tendency reasoning, and that the failure to do so created a real risk that the jury might have used the evidence for an impermissible purpose.
In light of these findings, the Court of Criminal Appeal quashed the convictions and ordered new trials. The court found that the cumulative effect of these procedural errors deprived the appellant of a fair trial, and thus the convictions could not stand. The appeal was allowed, and the matter was remitted for a new trial. The court emphasised the importance of procedural fairness in criminal trials, particularly in cases involving unrepresented accused persons and sexual offence proceedings.
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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