AB v R [2022] NSWCCA 104

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AB v R [2022] NSWCCA 104 Hearing dates: 27 April 2022 Decision date: 25 May 2022 Before: Adamson J at [1]; Wright J at [101]; Dhanji J at [105] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) The convictions on counts 1 and 2 on the indictment be quashed. (4) A new trial be ordered. (5) The matter is to be listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am. Catchwords: CRIME — Appeals — Appeal against conviction — whether trial judge reversed onus of proof — where trial judge stated Ewen and Murray directions — where no incorrect statement of principle CRIME — Appeals — Appeal against conviction — whether inconsistencies in evidence were not taken into account by trial judge — whether reasons adequately addressed inconsistencies in evidence CRIME — Appeals — Appeal against conviction — whether evidence of sexualised conduct taken into account by trial judge in the absence of findings — whether all evidence needs to be addressed irrespective of significance CRIME — Appeals — Appeal against conviction — Unreasonable verdict Legislation Cited: Crimes Act 1900 (NSW), ss 66A, 66EB Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 133, 293A, 294AA Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Ewen v R [2015] NSWCCA 117 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Hopgood v R [2019] NSWCCA 246 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 O'Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v BK [2022] NSWCCA 51 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Murray (1987) 11 NSWLR 12 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Texts Cited: Criminal Trials Bench Book Herbert Broom, Constitutional Law viewed in relation to Common Law and exemplified by cases (1st ed, 1866) Lord Devlin, Trial by Jury (rev ed, 1966) Category: Principal judgment Parties: AB (Applicant) Regina (Respondent) Representation: Counsel: E Kerkyasharian / K Lloyd (Applicant) G Wright SC (Respondent)