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Ss v The King

Ss v The King

Case [2024] NSWCCA 128 19 July 2024

Appeal

Miscarriage of Justice

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SS v R [2024] NSWCCA 128
Hearing dates: 28 June 2024
Decision date: 19 July 2024
Before: Adamson JA at [1];
Stern JA at [203];
Faulkner J at [207]
Decision:
(1)   Extend the time for filing of the notice of appeal with respect to grounds 1 and 2 (against conviction) to 3 April 2024.
(2)   Grant leave to appeal against the conviction (grounds 1 and 2).
(3)   Dismiss the appeal against conviction.
(4)   Refuse to extend time for filing the notice of appeal with respect to ground 3 (against sentence).

Catchwords:
CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge’s failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial
CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant’s evidence raised reasonable doubt about the applicant’s guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family
CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J, 61M, 61O, 66A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 132, 293A, 294
Evidence Act 1995 (NSW), ss 38, 128

Cases Cited:
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Conway v R [2023] NSWCCA 265
Crickitt v R [2018] NSWCCA 240
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Iglesias v R [2006] NSWCCA 261
Ilievski v R(No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
Khamis v R [2018] NSWCCA 131
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Maughan v R [2020] NSWCCA 51
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Bailey (1988) 35 A Crim R 458
R v Munday [1981] 2 NSWLR 177
Rao v R [2019] NSWCCA 290
Reed v R [2006] NSWCCA 314
The Queen v Baden-Clay (2016) 258 CLR 308; [2016]…

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 Ss v The King

Details

AGLC: Ss v The King [2024] NSWCCA 128
Case: [2024] NSWCCA 128
Decision Date: 19 July 2024

CaseChat Overview and Summary

The appeal before the court involved the appellant, who was convicted of child sexual assault offences. The appellant contested the conviction, arguing that it was unreasonable and that the trial judge's failure to recuse herself and abort the trial amounted to a miscarriage of justice. The appellant also sought an extension of time to appeal the sentence, claiming that he suffers from a terminal illness. The case was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge’s failure to recuse herself and abort the trial resulted in a miscarriage of justice, whether the conviction could be supported by the evidence, and whether an extension of time to appeal the sentence should be granted due to the appellant's terminal illness. The court had to determine whether the appellant was denied a fair trial and whether the conviction was unreasonable due to inconsistencies in the complainant's evidence and the retraction statement. Additionally, the court needed to assess whether fresh evidence of the appellant's terminal illness should be considered and if he was suffering from a terminal illness at the time of sentencing.

The court found that the trial judge’s failure to recuse herself did not result in a miscarriage of justice, as the new evidence raised mid-trial would not have altered the outcome. The inconsistencies in the complainant's evidence and the retraction statement did not raise reasonable doubt about the appellant's guilt. Consequently, the conviction was upheld. Regarding the extension of time to appeal the sentence, the court granted the extension due to the appellant's terminal illness. Fresh evidence of the appellant's terminal illness was received, and it was determined that he was indeed suffering from a terminal illness at the time of sentencing.

The High Court dismissed the appeal against the conviction, upheld the conviction, and granted an extension of time to appeal the sentence. The appellant's application for leave to appeal against sentence was allowed, subject to the usual conditions.

Orders