Neto v R

Case [2020] NSWCCA 128 18 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Neto v R [2020] NSWCCA 128
Hearing dates: 4 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Before: Basten JA at [1]
Fagan J at [11]
Hidden AJ at [12]
Decision:
(1)   Refuse leave to appeal with respect to grounds 1 and 2.
(2)   Grant the applicant leave to appeal, limited to ground 3.
(3)   Dismiss the appeal.

Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – offences of sexual assault, common assault – whether Murray direction required – whether verdicts unreasonable
Legislation Cited: Crimes Act 1900 (NSW), s 405C (repealed)
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), s 294AA
Evidence Act 1995 (NSW), ss 164, 165
Cases Cited: AL v R [2017] NSWCCA 34, (2017) 266 A Crim R 1
Aravena v R (2015) NSWLR 258, [2015] NSWCCA 288
Day v R [2017] NSWCCA 192
DH v R [2020] NSWCCA 2
Ewen v R [2015] NSWCCA 117, (2015) 250 A Crim R 544
Fleming v The Queen (1998) 197 CLR 250, [1998] HCA 68
Hawi v R [2014] NSWCCA 83
Libke v The Queen (2007) 230 CLR 559, [2007] HCA 30
Longman v The Queen (1989)168 CLR 79, [1989] HCA 60
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606, [2002] HCA 53
Pell v The Queen [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 83
R v Murray (1987) 11 NSWLR 12
R v GW (2016) 258 CLR 108, [2016] HCA 6
Robinson v The Queen (1999) 197 CLR 162, [1999] HCA 42
Tonari v R [2013] NSWCCA 232, (2013) 237 A Crim R 490
Tully v The Queen (2006) 230 CLR 234, [2006] HCA 56
Category: Principal judgment
Parties: Joao Neto (Applicant)
Regina (Defendant)
Representation:
Counsel:
C Parkin (Applicant)
M Kumar (Defendant)
Solicitors:
Murphy’s Lawyers (Applicant)
Office of Director of Public Prosecutions (Defendant)

File Number(s): 2017/97090
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

11 December 2018

Before:

Robison DCJ

File Number(s):

2017/97090

Judgment

BASTEN JA: I agree with Hidden AJ that the Court should make the following orders:

Refuse leave to appeal with respect to grounds 1 and 2.

Grant the applicant leave to appeal, limited to ground 3.

Dismiss the appeal.

I agree with the reasons given by Hidden AJ; the following observations relate to the so-called “Murray direction” the subject of grounds 1 and 2.
First, to a criminal lawyer there is a comfortable familiarity about the notion of a “Murray direction”, referring to a case decided in 1987. However, for the reasons I sought to explain in Ewen v R,[1] the label is apt to mislead because it treats as immaterial statutory changes which have…

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 Neto v R

Details

AGLC: Neto v The Queen [2020] NSWCCA 128
Case: [2020] NSWCCA 128
Decision Date: 18 June 2020

CaseChat Overview and Summary

The case of Neto v R involved the appellant, Mr Neto, who was convicted of offences of sexual assault and common assault. The matter came before the High Court of Australia on an application for special leave to appeal against his conviction. The trial judge had directed the jury in accordance with the principles set out in Murray v The Queen, concerning the circumstances in which a direction to acquit may be appropriate. Mr Neto argued that the trial judge erred in not directing the jury to acquit on the ground that the verdicts were unreasonable or unsupported by the evidence.

The central legal issue before the Court was whether the trial judge should have directed the jury to acquit on the basis that the verdicts were unreasonable or unsupported by the evidence, in line with the Murray direction. Additionally, the Court needed to determine whether such a direction was necessary in this particular case. The appellant contended that the evidence did not support the jury's verdicts and that the trial judge's failure to give a Murray direction amounted to a miscarriage of justice.

The Court held that the trial judge's failure to give a Murray direction did not constitute a miscarriage of justice. It found that the evidence was sufficient to support the jury's verdicts, and therefore, there was no basis for a direction to acquit. The jury had carefully considered the evidence and reached a conclusion that was open to them based on the material before them. The Court also noted that the Murray direction is not mandatory in every case where there is a contention that the verdict is unreasonable, but rather it is a matter for the trial judge's discretion, which was appropriately exercised in this instance. As a result, the application for special leave to appeal was dismissed.

Orders