Franklin v Regina [2021] NSWCCA 260

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Franklin v Regina [2021] NSWCCA 260 Hearing dates: 10 May 2021 Decision date: 08 November 2021 Before: McCallum JA; Beech-Jones J; Hamill J Decision: (1) Extend until 1 September 2020 the time within which the applicant may seek leave to appeal against his conviction. (2) Grant leave to raise ground 2(c) in the notice of appeal and otherwise refuse leave to raise grounds 2 and 3. (3) Reject the affidavit of Craig Franklin sworn 3 September 2020, including its annexures, other than the report of Professor Young dated 3 September 2020. (4) Apart from the first two lines on page 4, admit the report of Professor Young dated 3 September 2020 and her oral evidence given on 10 May 2021. (5) Dismiss the appeal. Catchwords: CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant's credibility – whether "fresh evidence" – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable Legislation Cited: Criminal Procedure Act 1986 s 293 Crimes Act 1900 (NSW), ss 61, 61J(1), 86(2)(b) Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1), 12(1) Evidence Act 1995 (NSW), ss 135, 136, 137 Jury Act 1977 (NSW), s 53B(d) Cases Cited: Caleo v R [2021] NSWCCA 179 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MRW v R [2011] NSWCCA 260 Norman v R [2012] NSWCCA 230 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Thompson [2014] EWCA 836 Ratten v The Queen (1974) 131 CLR 510 RD (a pseudonym) v R [2021] NSWCCA 94 S v R [2008] EWCA Crim 6 Thompson v R [2014] EWCA 836 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Xie v R [2021] NSWCCA 1 Texts Cited: Maras, K, Crane, L, Walker, L, & Memon, A (2019) Brief report: Perceived credibility of autistic witnesses and the effect of diagnostic information on credibility ratings. Research in Autism Spectrum Disorders, 68, Article 101442. Category: Principal judgment Parties: Craig Franklin (Applicant) Regina (Crown) Representation: Counsel: In person (Applicant) C Young (Crown)