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 unreasonableLegislation 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 232Category: Principal judgment Parties: SY (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
P Boulten SC & C Parkin (Applicant)
H Baker (Respondent)
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…
Continue reading SY v The Queen
Sign in free to access the full text
- AGLC
- SY v The Queen [2018] NSWCCA 6
- Case
- [2018] NSWCCA 6
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.