Legal Research
Cases
Soars v The King

Soars v The King

Case [2024] NSWCCA 218 2 December 2024

Appeal

Admissibility of Evidence

Circumstantial Evidence

Miscarriage of Justice

Manifest Excess

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Soars v R [2024] NSWCCA 218
Hearing dates: 06 November 2024
Date of orders: 02 December 2024
Decision date: 02 December 2024
Before: Bell CJ; Wright J; Chen J
Decision:
1.   Grant leave to appeal in respect of ground 1 of the draft Notice of Appeal.
2.   Dismiss ground 1 of the appeal.
3.   Otherwise, refuse leave to appeal.

Catchwords:
CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant’s brother was “evidence of a kind that may be unreliable” in the sense that it was given by a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”
CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant’s room – where the Crown case relied on a large body of circumstantial evidence
CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust

Legislation Cited:
Crimes Act 1900 (NSW) s 33(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW)
s 54A(2)
Criminal Appeal Act 1912 (NSW) s 6(1)
Evidence Act 1995 (NSW) s 165

Cases Cited:
Blair v The Queen [2022] NSWCCA 176
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
DL v R [2020] NSWCCA 164
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Du Plessis v R [2024] NSWCCA 164
Elias v R; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
GAR v R (No 2) [2010] NSWCCA 164
Jackson v R [2020] NSWCCA 230
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kaddour v R [2019] NSWCCA 90
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
R v Baartman [2000] NSWCCA 298
R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
Stewart v R (2001) 52 NSWLR 301; [2001] NSWCCA 260

Category: Principal judgment
Parties: Jason Reginald Soars (Applicant)
The Crown (Respondent)
Representation:
Counsel:

S Kluss (Applicant)
C Curtis (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
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 Soars v The King

Details

AGLC: Soars v The King [2024] NSWCCA 218
Case: [2024] NSWCCA 218
Decision Date: 02 December 2024

CaseChat Overview and Summary

In the case of Soars v The King, the applicant, Soars, appealed against his conviction for assault occasioning actual bodily harm and the sentence imposed. The applicant argued that the Crown failed to exclude the reasonable possibility that his brother was responsible for the attack on the victim, and that the evidence of his brother was unreliable as he might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. The applicant also argued that the verdict was unreasonable and that the sentence was a manifest excess.

The court was required to determine whether the evidence of the applicant’s brother was “evidence of a kind that may be unreliable” within the meaning of section 165(1)(d) of the Evidence Act 1995 (NSW), and whether there was a reasonable possibility that a person other than the applicant was responsible for the attack on the victim. The court was also required to determine whether the sentence imposed was a manifest excess.

The court held that the evidence of the applicant’s brother was not “evidence of a kind that may be unreliable” within the meaning of section 165(1)(d) of the Evidence Act 1995 (NSW), as there was no basis to conclude that the brother was criminally concerned in the events giving rise to the proceeding. The court held that there was no reasonable possibility that a person other than the applicant was responsible for the attack on the victim, as the DNA of the applicant, the victim and a third person found on nunchucks used in the attack which were located in the applicant’s room, coupled with the large body of circumstantial evidence, pointed to the applicant as the attacker. The court also held that the sentence imposed was not a manifest excess.

The appeal was dismissed.

Orders