Al Bayati v R [2022] NSWCCA 2

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Al Bayati v R [2022] NSWCCA 2 Hearing dates: 16 August 2021 Date of orders: 21 January 2022 Decision date: 21 January 2022 Before: McCallum JA; Hamill J; Cavanagh J Decision: (1) Refuse leave to rely on ground 3. (2) Otherwise, and where necessary, grant leave to appeal against the convictions. (3) Allow the appeal and quash the verdicts of guilty on counts 1, 2 and 3. (4) Enter a verdict of not guilty on count 3. (5) Order a re-trial on counts 1 and 2. The matter is listed for arraignment at the District Court on 4 February 2022. Catchwords: CRIMINAL LAW - procedure - application to amend indictment - re-trial - where child denied touching - addition of indecent assault count not previously charged - where application arose in response to objection to evidence - apprehended bias - whether trial Judge entered the arena - where judge hinted at "shoving" a new count on the indictment - suggestion of "incompetent bill finding" - repeated comments concerning indictment as framed - "weird" - "bizarre" - distinct roles of Prosecutor and Judge - choice of charges for the Director of Public Prosecutions - whether trial Judge "crossed the line" - relevant considerations CRIMINAL LAW - evidence - whether verdicts unreasonable or unable to be supported - independent review of evidence - advantages enjoyed by jury - acquittal entered on one count - re-trial ordered on remaining counts Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s15A Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 86(1)(b) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Evidence Act 1995 (NSW), s165(1)(a) Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Antoun v R [2006] HCA 2; (2006) 224 ALR 51 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ellis v R [2015] NSWCCA 262 GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 388 ALR 75 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Madden v R [2011] NSWCCA 254 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Pell v R (2020) 268 CLR 123; [2020] HCA 12 Potier v R [2015] NSWCCA 130 Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451 Sun Zhan Qui v Minister for Ethnic Affairs (1997) 1 FCR 71 Tarrant v R [2018] NSWCCA 21 Category: Principal judgment Parties: Mohammad Hassan Al Bayati (Applicant) Regina (Respondent) Representation: Counsel: A Cook (Applicant) G Newton (Respondent)