Barney v R [2023] NSWCCA 85

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barney v R [2023] NSWCCA 85 Hearing dates: 21 October 2022 Date of orders: 18 April 2023 Decision date: 18 April 2023 Before: Kirk JA at [1] N Adams J at [76] McNaughton J at [77] Decision: (1) Time for filing the application for leave to appeal is extended to permit the application to be made. (2) Grant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Inconsistent verdicts — Applicant charged with 21 sexual offences against step-daughter over several years — Convicted of 12 counts, acquitted of remaining 9 counts — Reliability and credibility distinguished — Significance of issues of reliability and credibility to assertions of inconsistent verdicts — Rational explanation for acquittals on the basis of evidence that offences may have occurred outside dates particularised Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61P, 66C(1) Criminal Appeal Act 1912 (NSW), s 6(1) Evidence Act 1995 (NSW), ss 32, 38 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jones v The Queen (1997) 191 CLR 439, [1997] HCA 56 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Kirkman (1987) 44 SASR 591 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Saunders v R [2022] NSWCCA 273 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA Watson v Foxman (2000) 49 NSWLR 315 Texts Cited: Peter McClellan, "Who is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Category: Principal judgment Parties: Phillip Barney (Applicant)