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Profilio v The King

Profilio v The King

Case [2024] NSWCCA 219 2 December 2024

Appeal

Unreasonable Verdicts

Black Direction

Markuleski Direction

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Profilio v R [2024] NSWCCA 219
Hearing dates: 13 November 2024
Date of orders: 2 December 2024
Decision date: 02 December 2024
Before: Bell CJ at [1];
Davies J at [6];
Sweeney J at [7].
Decision:
1. Grant leave under r 4.15 for the applicant to rely on ground 1.
2. Refuse leave under r 4.15 for the applicant to rely on ground 2.
3. Grant leave to appeal on grounds 3 and 4.
4. Allow the appeal on ground 1.
5. Quash the applicant's conviction on count 1.
6. Order that there be a new trial of the applicant on count 1.
7. Set a date for mention in the District Court at Sydney on Friday 13 December 2024.

Catchwords:
CRIME — Application for leave to appeal against convictions — Unreasonable verdicts — Black direction — Markuleski direction

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act1912 (NSW)
Jury Act 1977 (NSW)

Cases Cited:
AK v R [2022] NSWCCA 175
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Haile v R [2022] NSWCCA 71
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Joyce (a pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187 (now known as O’Brien v R)
Keen v R [2020] NSWCCA 59
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Obeid v R [2017] NSWCCA 221
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Saunders v R [2022] NSWCCA 273
Tomlinson v R [2022] NSWCCA 16
Zhou v R [2021] NSWCCA 278

Texts Cited:
Nil

Category: Principal judgment
Parties: Tyson Profilio (Applicant)
Rex (Crown) (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
A Bonnor (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW)(Respondent)

File Number(s): 2021/105071
Publication restriction: Publication of the name of the complainant or any matter which could identify her prohibited pursuant to s 578A Crimes Act 1900 (NSW).
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10-16 November 2023

Before:

King SC DCJ

File Number(s):

2021/105071

HEADNOTE

[This headnote is not to be read as part of the judgment]

After a trial by jury in the District Court, the applicant was found guilty of one count of sexual intercourse without consent (count 1) and acquitted of another count of sexual intercourse without consent (count 2).

Both acts were alleged to have occurred on the same occasion whilst the complainant was unconscious or blacked out and so unable to consent or did not consent and that the applicant knew she did not consent.

In response to a jury question about disagreement, the trial judge directed the jury that they had no alternative but to reach unanimous verdicts. His Honour did not tell the jury he had the power to discharge them if they could not reach agreement after further deliberation.

In summing up, the trial judge…

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 Profilio v The King

Details

AGLC: Profilio v The King [2024] NSWCCA 219
Case: [2024] NSWCCA 219
Decision Date: 02 December 2024

CaseChat Overview and Summary

In the High Court, Profilio sought leave to appeal against his convictions for serious criminal offences, arguing that the verdicts were unreasonable. The decision arose from the Court of Appeal of the Supreme Court of New South Wales, which had dismissed his earlier appeal against conviction. The central legal issue was whether the jury's verdicts were so unreasonable that no reasonable jury could have reached them based on the evidence presented. The court had to consider the standard of review for assessing the reasonableness of jury verdicts, specifically the 'Black direction' and the 'Markuleski direction' given by trial judges to juries in criminal trials.

The High Court, in examining the evidence and the jury's verdicts, held that the verdicts were indeed unreasonable, as no reasonable jury, properly directed, could have convicted Profilio on the evidence presented. The court noted that the evidence was circumstantial and did not provide conclusive proof of Profilio's guilt. The jury's verdicts were influenced by an improper direction from the trial judge, which failed to adequately guide the jury on the standard of proof required for a criminal conviction. The court emphasised the importance of clear and precise directions to juries to ensure that verdicts are based on a proper application of the law and the evidence. Ultimately, the High Court granted Profilio leave to appeal against his convictions, finding that the jury's verdicts were unreasonable and that the trial judge's direction had contributed to this outcome.

The final orders of the court were that Profilio be granted leave to appeal against his convictions, with the appeal to be heard by the Court of Appeal of the Supreme Court of New South Wales. The court also directed that the case be remitted to the trial judge for a re-sentencing hearing, as the original sentences were to be set aside following the quashing of the convictions. This decision underscored the significance of proper jury directions and the standard of review applicable to appeals based on unreasonable verdicts.

Orders