SM v R

Case [2022] NSWCCA 13 9 February 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: SM v R [2022] NSWCCA 13
Hearing dates: 18 June 2021
Decision date: 09 February 2022
Before: McCallum JA at [1];
Rothman J at [57];
Wright J at [58].
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether failure to reach verdict on certain counts informs the reasonableness of jury’s guilty verdicts — whether evidentiary inconsistencies affected complainant’s reliability

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6
Crimes Act 1900 (NSW), ss 66C(2), 66C(4), 578A

Cases Cited:
Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
Libke v R (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFAv The Queen (2002) 213 CLR 606; [2002] HCA 53
PA v R [2015] NSWCCA 18
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: SM (Applicant)
Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
M A Kumar (Crown)
Solicitors:
Nyman Gibson Miralis (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2017/159300
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that identifies the complainant or any matter which is likely to lead to her identification is prohibited. Because they are related, identifying information concerning the applicant has been anonymized in this judgment.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

7 February 2020

Before:

Pickering SC DCJ

File Number(s):

2017/159300

Judgment

McCALLUM JA: The applicant was arraigned on an indictment containing seven counts of sexual offences alleged to have been committed against his stepdaughter and one count of allegedly supplying a prohibited drug.^[1] He pleaded not guilty to all counts. He was tried before Pickering SC DCJ and a jury in early 2020. After deliberating for several days, the jury informed the judge that they had reached unanimous verdicts on four identified counts but that they had been unable to reach unanimous verdicts on the remaining counts. The judge took the four verdicts, which were verdicts of guilty to counts 1, 2, 4 and 8. His Honour then directed the jury as to the possibility of returning a majority verdict on the remaining counts. After a short adjournment, the jury informed the judge that they would not be able to reach a majority verdict on any of the remaining counts. His Honour discharged the jury at that point.
1. Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that identifies the complainant or any matter which is likely to lead to her identification is prohibited. Because they are related, identifying information concerning the applicant has been anonymized in this judgment.
The applicant appeals against his conviction on the four counts on which guilty verdicts were returned. The single ground…

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 SM v R

Details

AGLC: SM v R [2022] NSWCCA 13
Case: [2022] NSWCCA 13
Decision Date: 09 February 2022

CaseChat Overview and Summary

In this case, the appellant, SM, was convicted of several offences of sexual assault against a complainant. The conviction was challenged on appeal on the basis that the verdict was unreasonable, with the appellant arguing that the jury's failure to reach a verdict on certain counts, along with evidentiary inconsistencies, undermined the reliability of the complainant's evidence. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the failure of the jury to reach a verdict on certain counts of the indictment, as well as evidentiary inconsistencies, rendered the guilty verdicts unreasonable. The appellant argued that these factors significantly impacted the reliability of the complainant's evidence, thereby affecting the overall reasonableness of the jury's decision. The court was required to determine whether the jury's verdict, in light of these issues, was open to the possibility that it was unreasonable.

The court examined the principles governing the unreasonableness of jury verdicts and found that the jury's failure to reach a verdict on certain counts did not necessarily indicate unreasonableness, as it was within the jury's power to decide which counts they could confidently find proven. The court also considered the effect of evidentiary inconsistencies on the reliability of the complainant's evidence, but concluded that these inconsistencies did not undermine the overall reliability of her evidence to the extent that it affected the reasonableness of the verdicts. The court found that the jury's guilty verdicts were open to them, and therefore, the appeal was dismissed.

The High Court of Australia dismissed the appeal against the appellant's conviction, upholding the jury's verdicts as reasonable.

Orders