Important cases — Appeal

[9-1040] AB v R [2023] NSWCCA 165

Last reviewed: June 2024

Conviction appeal — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge’s failure to give a “lies direction” or “Zoneff direction” in response to Crown Prosecutor’s submissions — to ensure a fair trial it was necessary for trial judge to have given an Edwards or Zoneff direction — majority verdict — Jury Act 1977, s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the Crown having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted.

Kannis v R [2020] NSWCCA 79

Conviction appeal — applicant pleaded guilty to child pornography and grooming offences — full-time custodial sentence imposed with applicant to be released on recognizance release order after 15 months — reliance upon sentencing decisions failed to give effect to findings favourable to applicant — sentencing decisions dissimilar to applicant’s case in significant respects and did not identify sentencing range — applicant re-sentenced to imprisonment to be released after 11 months on recognizance release order.

BC v R [2019] NSWCCA 111

Conviction appeal — applicant sentenced for 20 counts of child sexual assault offences — applicant was aged between 11–13 at the time of committing three counts of child sexual assault offences — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — guilty verdicts unreasonable for counts 1–3 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — applicant’s convictions quashed in respect of counts 1–3 and re-sentenced — imposition of a new sentence deferred until further hearing on tendency evidence.