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SY v The Queen

SY v The Queen

Case [2018] NSWCCA 6 7 February 2018

Reasonableness of Verdict

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: SY v R [2018] NSWCCA 6
Hearing dates: 30 August 2017
Date of orders: 30 August 2017
Decision date: 07 February 2018
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Bellew J at [105]
Decision:
1. The appeal is allowed.
2. The conviction is quashed.
3. The verdict of acquittal is entered.
4. Order that the Appellant be released forthwith.

Catchwords: CRIMINAL LAW – indecent assault - appeal against conviction – trial judge’s directions to jury – whether directions suggested or implied an onus of proof on the accused – rule in Browne v Dunn – whether rule applicable to criminal proceedings – where parties agreed on the sufficiency of cross-examination – where trial judge raised with the jury the failure to cross-examine beyond the agreement reached – whether misdirection excluded reasonable possibilities of innocence from the jury’s consideration - whether misdirection cured by later direction – whether verdict
was unreasonable – relevance of misdirection to consideration of unreasonableness – whether jury’s advantageous position relevant where misdirection affected onus of proof – improbability of offence having been committed – verdict unreasonable
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules 1952 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Day v R [2017] NSWCCA 192
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Moore v R [2016] NSWCCA 185
Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Whitmore [1999] NSWCCA 247
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
SKA v Regina [2012] NSWCCA 205
Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232
Category: Principal judgment
Parties: SY (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Boulten SC & C Parkin (Applicant)
H Baker (Respondent)
Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/28426
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

4 October 2016

Before:

Wass DCJ

File Number(s):

2014/28426

Judgment

HOEBEN CJ AT CL: I agree with the reasons of Davies J.
DAVIES J: The applicant was charged with assaulting the complainant and at the time of the assault committing an act of indecency on him in circumstances of aggravation. The circumstances of aggravation were that the complainant was under the age of 16 years being aged 15 at the time of the assault.
He was tried before Judge Wass SC and a jury of…

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 SY v The Queen

Details

AGLC: SY v The Queen [2018] NSWCCA 6
Case: [2018] NSWCCA 6
Decision Date: 07 February 2018

CaseChat Overview and Summary

In the case of SY v The Queen, the defendant was convicted of indecent assault and subsequently appealed against the conviction. The appeal centred on whether the trial judge's directions to the jury suggested or implied an onus of proof on the accused. The court was required to consider the applicability of the rule in Browne v Dunn to criminal proceedings and whether the trial judge's comments on the failure to cross-examine beyond the agreement reached between the parties amounted to a misdirection that excluded reasonable possibilities of innocence from the jury's consideration. Additionally, the court examined whether any subsequent direction by the trial judge cured the misdirection and whether the verdict was unreasonable, particularly in light of the misdirection and the jury's advantageous position.

The court held that the trial judge's directions did not suggest or imply an onus of proof on the accused, and thus did not contravene the rule in Browne v Dunn. However, the court found that the trial judge's comments on the failure to cross-examine beyond the agreed scope amounted to a misdirection that excluded reasonable possibilities of innocence from the jury's consideration. The court determined that this misdirection was not cured by later directions. Furthermore, the court held that the misdirection was relevant to the consideration of the unreasonableness of the verdict, particularly given the improbability of the offence having been committed. The court concluded that the verdict was unreasonable due to the misdirection and the jury's advantageous position.

Consequently, the court quashed the conviction and ordered a retrial. The court's decision emphasised the importance of ensuring that juries are not misdirected in a manner that affects the onus of proof or excludes reasonable possibilities of innocence from their consideration. The case underscores the need for trial judges to be vigilant in their directions to the jury and to avoid any comments that may prejudice the accused.

Orders