Agnew v R [2024] NSWCCA 5

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Agnew v R [2024] NSWCCA 5 Hearing dates: 18 October 2023 Date of orders: 9 February 2024 Decision date: 09 February 2024 Before: Price J at [1]; Lonergan J at [178]; Dhanji J at [179] Decision: (1) Grant the applicant an extension of time within which to seek leave to appeal against his convictions. (2) Grant the applicant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME – Appeals – Appeal against conviction – two counts of sexual intercourse without consent – whether trial judge failed to properly direct the jury on all the elements of the offence – concession by the applicant's trial counsel that there was no issue as to consent or knowledge of lack of consent – no request for further directions at trial – whether further directions were required – whether miscarriage of justice – whether verdicts were unsafe and unsatisfactory – inconsistencies in evidence of Crown witnesses – whether complainant had motive to fabricate her evidence – whether inconsistencies and discrepancies lead to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt Legislation Cited: Crimes Act 1900 (NSW), s 61I Criminal Appeal Act 1912 (NSW), s 5(1) Evidence Act 1995 (NSW), s 165 Cases Cited: Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Category: Principal judgment Parties: Gregory Agnew (Applicant) Rex (Respondent) Representation: Counsel: S Kluss (Applicant) E Nicholson (Respondent)