SB v R [2020] NSWCCA 207

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SB v R [2020] NSWCCA 207 Hearing dates: 17 June 2020 Date of orders: 19 August 2020 Decision date: 19 August 2020 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; Hamill J at [178] Decision: (1) Time to file the appeal extended to allow for the filing of the appeal in these proceedings on 28 February 2020; (2) Leave granted under Rule 4 of the Criminal Appeal Rules to argue each of Grounds 1 and 2 of the appeal; (3) Leave to appeal granted; (4) The appeal on Ground 2 dismissed; (5) The appeal on Ground 1 allowed; (6) The conviction of the appellant on Counts 1 and 5, being sexual intercourse with a child under 10 years, under authority committed between 16 May 2013 and 10 September 2013 and sexual intercourse with a child under 10 years, committed between 30 October 2015 and 2 November 2015, is quashed; (7) The indictment and/or charges relating to Counts 1, 2, 5 and 6 of the indictment are remitted to the District Court for re-trial. (8) The matter is to be listed in the District Court Arraignment List on 28 August 2020 at 9:30 AM. Catchwords: CRIMINAL LAW – conviction appeal – unfair or unbalanced summing-up causing miscarriage of justice – while there may be circumstances that permits a trial judge not to summarise facts, once a judge commences a summary it must be fair and balanced Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4 Criminal Procedure Act 1986 (NSW), ss 161, 294 Evidence Act 1995 (NSW), ss 59, 60, 66, 102, 135, 136, 137, 164 Cases Cited: DV v R [2017] NSWCCA 276 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Chai (2002) 76 ALJR 628; [2002] HCA 12 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Holden (1917) 34 WN (NSW) 78 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Meher [2004] NSWCCA 355 R v Osborne [1905] 1 KB 551 R v Skuse (Court of Criminal Appeal (NSW), 24 October 1996, unrep) Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Roos v R [2019] NSWCCA 67 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65 Texts Cited: H Moore, Australian Concise Oxford Dictionary, (4th ed, 2003, Oxford University Press Australia) Judicial Commission of NSW, Criminal Trial Courts Bench Book Category: Principal judgment Parties: SB (Appellant) Crown (Respondent) Representation: Counsel: J Stratton SC (Appellant) E Balodis (Respondent)