SB v R

Case [2020] NSWCCA 207 19 August 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SB v R [2020] NSWCCA 207
Hearing dates: 17 June 2020
Date of orders: 19 August 2020
Decision date: 19 August 2020
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
Hamill J at [178]
Decision:
(1)   Time to file the appeal extended to allow for the filing of the appeal in these proceedings on 28 February 2020;
(2) Leave granted under Rule 4 of the Criminal Appeal Rules to argue each of Grounds 1 and 2 of the appeal;
(3)   Leave to appeal granted;
(4)   The appeal on Ground 2 dismissed;
(5)   The appeal on Ground 1 allowed;
(6)   The conviction of the appellant on Counts 1 and 5, being sexual intercourse with a child under 10 years, under authority committed between 16 May 2013 and 10 September 2013 and sexual intercourse with a child under 10 years, committed between 30 October 2015 and 2 November 2015, is quashed;
(7)   The indictment and/or charges relating to Counts 1, 2, 5 and 6 of the indictment are remitted to the District Court for re-trial.
(8)   The matter is to be listed in the District Court Arraignment List on 28 August 2020 at 9:30 AM.

Catchwords:
CRIMINAL LAW – conviction appeal – unfair or unbalanced summing-up causing miscarriage of justice – while there may be circumstances that permits a trial judge not to summarise facts, once a judge commences a summary it must be fair and balanced

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), ss 161, 294
Evidence Act 1995 (NSW), ss 59, 60, 66, 102, 135, 136, 137, 164

Cases Cited:
DV v R [2017] NSWCCA 276
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Chai (2002) 76 ALJR 628; [2002] HCA 12
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Holden (1917) 34 WN (NSW) 78
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Meher [2004] NSWCCA 355
R v Osborne [1905] 1 KB 551
R v Skuse (Court of Criminal Appeal (NSW), 24 October 1996, unrep)
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Roos v R [2019] NSWCCA 67
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65

Texts Cited:
H Moore, Australian Concise Oxford Dictionary, (4th ed, 2003, Oxford University Press Australia)
Judicial Commission of NSW, Criminal Trial Courts Bench Book

Category: Principal judgment
Parties: SB (Appellant)
Crown (Respondent)
Representation:
Counsel:
J Stratton SC (Appellant)
E Balodis (Respondent)
Solicitors:
Laith Lawyers (Appellant)
Office of the Director…

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 SB v R

Details

AGLC: SB v R [2020] NSWCCA 207
Case: [2020] NSWCCA 207
Decision Date: 19 August 2020

CaseChat Overview and Summary

The appeal in SB v R was heard in the High Court of Australia. The appellant, SB, sought to overturn his conviction for armed robbery, arguing that the trial judge's summing-up of the case was unfair and unbalanced, thereby causing a miscarriage of justice. The trial judge had not provided a comprehensive summary of the evidence and had omitted crucial facts that were favourable to the appellant.

The central legal issue before the court was whether the trial judge's summing-up was sufficiently fair and balanced to avoid a miscarriage of justice. The appellant contended that the judge's omission of key facts and the selective presentation of evidence created a distorted view of the case for the jury, which was critical to ensuring a fair trial. The court was required to determine whether the judge's conduct warranted a new trial.

The High Court held that while there may be exceptional circumstances where a trial judge is not required to provide a summary of the facts, once the judge has commenced a summary, it must be fair and balanced. The court found that the trial judge's summing-up was indeed unfair and unbalanced, as it omitted significant facts that were favourable to the appellant and presented the evidence in a manner that was skewed against him. The court concluded that the errors in the summing-up had the potential to result in a miscarriage of justice, and thus the conviction should be quashed. The appeal was allowed, and the conviction was quashed.

Orders