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: Black v The Queen (1993) 179 CLR 44; [1993] HCA 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)
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Saunders v R [2022] NSWCCA 273
Texts Cited: Nil
Category: Principal judgment Parties: Tyson Profilio (Applicant)
Rex (Crown) (Respondent)Representation: Counsel:
Solicitors:
S Kluss (Applicant)
A Bonnor (Respondent)
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…
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- AGLC
- Profilio v The King [2024] NSWCCA 219
- Case
- [2024] NSWCCA 219
- Decision Date
CaseChat Overview and Summary
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
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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