RD (a pseudonym) v R [2021] NSWCCA 94

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RD (a pseudonym) v R [2021] NSWCCA 94 Hearing dates: 10 March 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Before: Macfarlan JA at [1]; Walton J at [56]; Hamill J at [57] Decision: (1) Grant leave to appeal in respect of the applicant's convictions on Counts 1, 2, 5, 6, 7, 8, 9, 11, 12, 13 and 14. (2) Allow the appeal in relation to the applicant's convictions on Counts 1, 2, 8 and 12 charged in the Indictment dated 22 May 2019. (3) Quash the convictions on those Counts numbered 1, 2, 8 and 12. (4) Direct a verdict of acquittal on those Counts. (5) Quash the aggregate sentence imposed on the applicant on 16 July 2019. (6) Remit the proceedings to the District Court to resentence the applicant in respect of his convictions on Counts 3-7, 9-11 and 13-16 inclusive. (7) Otherwise dismiss the appeal. (8) Pursuant to Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10, applicant to be detained in custody until his resentencing has concluded. (9) List the matter for mention in the District Court at the Sydney Downing Centre in the arraignment list at 9.30am on Friday 21 May 2021. Catchwords: CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant's evidence of sexual misconduct of applicant specific to particular charges or merely generalised assertions of misconduct – need for close examination of complainant's evidence on each count – frequent use of word "would" in parts of evidence – specific recollection of acts occurring on a particular occasion in other parts of evidence – convictions on some counts quashed and verdicts of acquittal entered on those counts CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant's evidence lacked sufficient quality and consistency to permit its acceptance by jury – no clear support for one count – conviction quashed and verdict of acquittal entered on that count CRIME – appeals – successful appeal against convictions on ground of unreasonable verdicts – convictions quashed – whether appropriate to enter verdicts of acquittal or order new trial – Crown should not be permitted to attempt to obtain convictions at further trial by improving its case – absence of special circumstances – verdicts of acquittal entered Legislation Cited: Crimes Act 1900 (NSW), s 76 Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1) Evidence Act 1995 (NSW), s 32 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10 Cases Cited: KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 Prasad v R [2020] NSWCCA 349 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep) R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Wade v The Queen [2018] VSCA 304 Category: Principal judgment Parties: RD (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: T Ramrakha (Applicant) S Traynor (Respondent)