BQ v R [2023] NSWCCA 34

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BQ v R [2023] NSWCCA 34 Hearing dates: 25 November 2022 Decision date: 03 March 2023 Before: Davies J; McNaughton J; R A Hulme AJ Decision: (1) Extend time for the filing of the notice of appeal to 16 May 2022. (2) Refuse leave to appeal in respect of Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). (3) Grant leave to appeal in respect of Grounds 1 and 2B and allow the appeal in part. (4) Quash the conviction on Count 8 and pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) substitute a verdict of guilty of indecent assault upon a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). (5) Quash the conviction on Count 11 and enter a verdict of acquittal. (6) Quash the aggregate sentence imposed in the District Court on 30 November 2018. (7) Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court for re-sentencing in respect of the convictions on Counts 1, 2, 3, 4, 7, 8, 9 and 10. (8) List the matter for mention in the District Court at Sydney on 10 March 2023 at 9.30am. Catchwords: CRIME — appeals — appeal against conviction — child sexual assault – where complainants were the applicant's nieces – whether verdict unreasonable in respect of counts 1, 8, 9, 10 and 11 – open to jury to return guilty verdicts in respect of counts 1, 9 and 10 – reasonable doubt as to whether penetrative act occurred for count 8 – expressions "in" and "on" used interchangeably by complainant – reasonable doubt as to whether incident in count 11 occurred – confusion regarding presence of applicant where incident alleged to have occurred – ground of appeal allowed in part EVIDENCE – the opinion rule – exceptions – expert evidence – whether miscarriage of justice on account of expert evidence as to responses of child victims of sexual assault – evidence given within bounds of expertise – ground of appeal dismissed APPEALS — from jury verdict — nondirection – whether jury directions regarding expert evidence gave rise to a miscarriage of justice – absence of request for directions at trial – no requirement in the circumstances of the case to warn the jury on how expert evidence could not be used – leave to raise ground of appeal refused APPEALS — orders on appeal — substituted judgment or orders – substitution of conviction for indecent assault upon child upon quashing conviction for sexual intercourse with child – quashing aggregate sentence – remitting to District Court for resentencing Legislation Cited: Crimes Act 1900 (NSW), ss 61H, 61M Crimes Amendment (Sexual Offences) Act 2008 (NSW) Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2), 12(2) Criminal Procedure Act 1986 (NSW), s 294 Evidence Act 1995 (NSW), ss 38, 79, 108C, 165B Evidence Amendment Act 2007 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: AJ v R [2022] NSWCCA 136 AK v R [2022] NSWCCA 175 ARS v R [2011] NSWCCA 266 Aziz v R [2022] NSWCCA 76 Campbell v R [2018] NSWCCA 87 Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 Jackson v R [2020] NSWCCA 5 Jacobs v The Queen [2019] VSCA 285 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen [2011] NZCA 191 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78; 395 ALR 631 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Saunders v R [2022] NSWCCA 273 SB v R [2020] NSWCCA 207 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: BQ (Applicant) The King (Respondent) Representation: Counsel: G Bashir SC and S Howell (Applicant) M Millward (Respondent)