SB v R

Case [2020] NSWCCA 207


Court of Criminal Appeal


Supreme Court


New South Wales

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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…

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

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

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

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