Sita v R [2022] NSWCCA 90

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sita v R [2022] NSWCCA 90 Hearing dates: 21 March 2022 Date of orders: 6 May 2022 Decision date: 06 May 2022 Before: Beech-Jones CJ at CL at [1] Price J at [61] N Adams J at [62] Decision: (1) The Appellant be granted leave to raise grounds 1 and 2 of his Notice of Appeal. (2) The appeal be allowed. (3) The Appellant's conviction be quashed. (4) A new trial be ordered. (5) List the matter in the Arraignments List in the District Court at Parramatta on 20 May 2022. Catchwords: CONVICTION APPEAL – applicant faced trial on 10 counts of child sexual assault involving two victims – convicted on one count involving one victim which was supported by evidence from other victim – Markuleski direction – trial judge told jury they could use any doubt about a victim's evidence on one count in considering their evidence on other counts involving that victim but not in addressing any count concerning the other victim – effect of direction was to preclude jury from using any doubts about the evidence of one of the victims in the assessment of so much of their evidence that related to the count concerning the other victim – point not taken at trial – no forensic advantage to accused – miscarriage of justice – unreasonable verdict – whether verdicts inconsistent – whether evidence supporting conviction meant that it was unreasonable – whether commission of offence improbable because of risk of detection – ground rejected – verdict not unreasonable – appropriate order – retrial ordered Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Martin v R [2020] NSWCCA 192 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Obeid v R (2017) 96 NSWLR 155 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 SM v R [2022] NSWCCA 13 VP v R [2021] NSWCCA 11 WX v R [2020] NSWCCA 142 Category: Principal judgment Parties: Nifae Sita (Applicant) Regina (Respondent) Representation: Counsel: J Stratton SC; M Fordham (Applicant) E Balodis; A Morris (Respondent)