SS v R [2024] NSWCCA 128

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SS v R [2024] NSWCCA 128 Hearing dates: 28 June 2024 Decision date: 19 July 2024 Before: Adamson JA at [1]; Stern JA at [203]; Faulkner J at [207] Decision: (1) Extend the time for filing of the notice of appeal with respect to grounds 1 and 2 (against conviction) to 3 April 2024. (2) Grant leave to appeal against the conviction (grounds 1 and 2). (3) Dismiss the appeal against conviction. (4) Refuse to extend time for filing the notice of appeal with respect to ground 3 (against sentence). Catchwords: CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge's failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant's evidence raised reasonable doubt about the applicant's guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 61O, 66A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 132, 293A, 294 Evidence Act 1995 (NSW), ss 38, 128 Cases Cited: BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 Conway v R [2023] NSWCCA 265 Crickitt v R [2018] NSWCCA 240 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Iglesias v R [2006] NSWCCA 261 Ilievski v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 Khamis v R [2018] NSWCCA 131 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Maughan v R [2020] NSWCCA 51 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Bailey (1988) 35 A Crim R 458 R v Munday [1981] 2 NSWLR 177 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Xu v R [2019] NSWCCA 178 Z (a pseudonym) v R [2022] NSWCCA 8 Category: Principal judgment Parties: SS (Applicant) Rex (Respondent) Representation: Counsel: B Walker (Applicant) A Bonnor (Respondent)