SKA v The Queen [2011] HCA 13

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND KIEFEL JJ

SKA APPLICANT

AND

THE QUEEN RESPONDENT

SKA v The Queen [2011] HCA 13

4 May 2011

S100/2010

ORDER

1. Special leave to appeal granted in respect of grounds 2, 3 and 4 of the amended draft notice of appeal dated 13 August 2010, but refused on grounds 1 and 5.

2. Appeal treated as instituted and heard instanter and allowed.

3. Set aside the order of the Court of Criminal Appeal of New South Wales dismissing the applicant's appeal against conviction to that Court made on 14 July 2009.

4. Remit the matter to the Court of Criminal Appeal for rehearing.

On appeal from the Supreme Court of New South Wales

Representation

H K Dhanji SC with C E Alexander for the applicant (instructed by Crawford & Duncan)

D M L Woodburne SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SKA v The Queen

Criminal law – Appeal – Appeal on ground jury verdict unreasonable, or cannot be supported, having regard to the evidence – Application of test in M v The Queen (1994) 181 CLR 487 – Whether Court of Criminal Appeal made independent assessment of evidence.

Criminal law – Appeal – Video evidence – Where Court of Criminal Appeal relied on transcript of evidence – Whether sufficient to rely on transcript of evidence.

Criminal law – Appeal – Trial judge's opinion – Where trial judge considered a jury acting reasonably could not have been satisfied beyond reasonable doubt of accused's guilt – Whether regard should be had to trial judge's opinion.

Words and phrases – "unreasonable, or cannot be supported", "unsafe or unsatisfactory".

Criminal Appeal Act 1912 (NSW), s 6(1).