Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: SM v R [2016] NSWCCA 171 Hearing dates: 4 July 2016 Decision date: 17 August 2016 Before: Bathurst CJ at [1];
Basten JA at [2];
Simpson JA at [29]Decision: (1) To the extent necessary, grant the applicant leave to appeal against his conviction.
(2) Dismiss the appeal against conviction.
(3) Grant the applicant leave to appeal against sentence.
(4) Dismiss the appeal against sentence.Catchwords: CRIME – conviction appeal – jury direction – jury’s views as to reliability or credibility of complainant – use of reasonable doubt with respect to one charge in assessing another charge – conviction on one count and acquittal on second count – whether jury direction adequate – whether verdicts inconsistent - whether conviction an unreasonable verdict
CRIME – sentence appeal – Local Court jurisdictional limit – theoretical possibility that conviction could have been dealt with in Local Court – whether District Court took into account jurisdictional limit of Local Court – how that factor may affect sentenceLegislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 267, 294AACases Cited: Baines v R [2016] NSWCCA 132
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Palmer [2005] NSWCCA 349Category: Principal judgment Parties: SM (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr W Hunt / Ms C O’Neill (Applicant)
Mr E Balodis (Respondent)
S E O’Connor – Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/273408 Publication restriction: The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 31 July 2015
- Before:
- Woods DCJ
- File Number(s):
- 2012/273408
Judgment
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BATHURST CJ: I agree with Basten JA.
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BASTEN JA: The applicant, SM, was found guilty by a jury on one count of assault with an act of indecency, on a child under the age of 16 years. [1] At the time of the alleged offence, the applicant was living with the complainant and was in a relationship with her mother. The charge alleged that the applicant came into the complainant’s bedroom on Christmas Eve, 2011, lay down beside her on the bed and held her breasts. He seeks leave to appeal from the conviction.
1. The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
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The applicant was also charged and tried at the same time, on a second count of indecent assault which occurred some weeks later in March/April 2012. The allegation was that, after rubbing ointment into an area of eczema on the back of her leg, he reached his hand up…
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- AGLC
- SM v The Queen [2016] NSWCCA 171
- Case
- [2016] NSWCCA 171
- Decision Date
CaseChat Overview and Summary
The court examined the adequacy of the jury directions, considering the trial judge's directions on the reliability and credibility of the complainant, and the application of reasonable doubt to both charges. The court found that the trial judge had adequately directed the jury, and that the verdicts were not inconsistent. The court also examined the District Court's failure to take into account the jurisdictional limit of the Local Court, and considered whether this affected the sentence. The court found that the District Court had not taken into account the jurisdictional limit of the Local Court, but that this did not affect the sentence.
The appellant's appeal against conviction was dismissed, and the appeal against sentence was allowed in part. The court ordered that the appellant be re-sentenced by the District Court, taking into account the jurisdictional limit of the Local Court. The court also noted that the appellant's conviction on one count of sexual assault, and acquittal on the second count, demonstrated that the jury had carefully considered the evidence and directions, and had come to a reasonable verdict.
In summary, the Court of Criminal Appeal found that the trial judge had adequately directed the jury, and that the verdicts were not inconsistent. The court also found that the District Court had not taken into account the jurisdictional limit of the Local Court, but that this did not affect the sentence. The appellant's conviction was upheld, but his sentence was quashed and the matter was remitted to the District Court for re-sentencing.
Orders
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Background
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Decision
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