Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 Hearing dates: 16 September 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Before: Gleeson JA at [1] Price J at [76] Wright J at [77] Decision: (1) Extend the time for filing of the notice of application for leave to appeal to 3 June 2020. (2) Grant leave to appeal against conviction on ground 1. (3) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child's evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused's misconduct in making threats to the child Legislation Cited: Crimes Act 1900 (NSW), ss 61A(1), 61M(2), 578A Criminal Appeal Act 1912 (NSW), s 5(1)(b) Evidence Act 1995 (NSW), s 165B Cases Cited: Binns v R [2017] NSWCCA 280 Cabot (a pseudonym) v R [2018] NSWCCA 265 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 Lever (a pseudonym) v R [2018] NSWCCA 107 Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 PT v The Queen [2011] VSCA 43 TO v R [2017] NSWCCA 12; [2017] 265 A Crim R 191 R v Arnold (1993) 30 NSWLR 73 R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 R v Johns (1978) 2 NSWLR 259 R v Mai (1992) 26 NSWLR 371 Category: Sentence Parties: Cabot (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: S Odgers SC (Applicant) K Jeffreys (Respondent)