MH (a pseudonym) v R [2021] NSWCCA 230

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MH (a pseudonym) v R [2021] NSWCCA 230 Hearing dates: 2 July 2021 Date of orders: 27 September 2021 Decision date: 27 September 2021 Before: Payne JA at [1]; Rothman J at [92]; Button J at [93] Decision: 1. Extend time for the filing of the notice of appeal to 8 December 2020; 2. Leave to appeal granted; 3. Appeal dismissed. Catchwords: CRIME — appeals — appeal against conviction — miscarriage of justice — where video recordings taken at 12:45am and 12:46am were in evidence — where applicant submitted that the recordings could not have proven lack of consent to sexual intercourse unless they were nearly contemporaneous with the offending — where applicant submitted that the offending occurred at 11:45pm and there was no opportunity for the offending to have occurred at around 12:45am — where applicant submitted that his evidence given at trial as to the gap in time between the recordings and sexual intercourse was wrong — no miscarriage of justice — appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Appeal Rules, r 3A(2) Cases Cited: Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 Category: Principal judgment Parties: MH (Applicant) Crown (Respondent) Representation: Counsel: B Walker SC with N Kirby (Applicant) E Balodis (Crown)