AB v R [2023] NSWCCA 165

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AB v R [2023] NSWCCA 165 Hearing dates: 27 March 2023 Date of orders: 3 July 2023 Decision date: 03 July 2023 Before: Beech-Jones CJ at CL at [1] N Adams J at [79] Yehia J at [80] Decision: (1) The time in which the application for leave to appeal may be brought be extended up to and including 16 September 2022. (2) The applicant be granted leave to raise grounds 1 and 2 of the Notice of Appeal. (3) Ground 1 be upheld. (4) The appeal be allowed. (5) The applicant's conviction for an offence under s 66A(1) of the Crimes Act 1900 (NSW) entered on 10 September 2021 be set aside. (6) In lieu thereof a verdict of acquittal be entered. Catchwords: CRIMES — appeals — appeal against conviction — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge's failure to give a "lies direction" or "Zoneff direction" in response to Crown Prosecutor's submissions — Crown Prosecutor's reliance on applicant's silence and alleged lie to rebut the presumption of doli incapax involved appeal to consciousness of guilt reasoning — to ensure a fair trial it was necessary for trial judge to have given an Edwards or Zoneff direction — majority verdict — Jury Act 1977 (NSW), s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — leave to appeal allowed — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the Crown having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Companies (New South Wales) Code 1981 (NSW) Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Jury Act 1977 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: AK v R [2022] NSWCCA 175 Anderson v The Queen (1991) 53 A Crim R 421 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 BP v R [2006] NSWCCA 172 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114 KE v R [2021] NSWCCA 119 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Mark McKey v R [2012] NSWCCA 1 R v Andrew Button (a pseudonym) [2021] NSWDC 829 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: AB (Applicant) R (Respondent) Representation: Counsel: Mr D Barrow (Applicant) Ms A Bonnor (Respondent)