Soars v R [2024] NSWCCA 218

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Soars v R [2024] NSWCCA 218 Hearing dates: 06 November 2024 Date of orders: 02 December 2024 Decision date: 02 December 2024 Before: Bell CJ; Wright J; Chen J Decision: 1. Grant leave to appeal in respect of ground 1 of the draft Notice of Appeal. 2. Dismiss ground 1 of the appeal. 3. Otherwise, refuse leave to appeal. Catchwords: CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant's brother was "evidence of a kind that may be unreliable" in the sense that it was given by a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant's room – where the Crown case relied on a large body of circumstantial evidence CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust Legislation Cited: Crimes Act 1900 (NSW) s 33(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2) Criminal Appeal Act 1912 (NSW) s 6(1) Evidence Act 1995 (NSW) s 165 Cases Cited: Blair v The Queen [2022] NSWCCA 176 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 DL v R [2020] NSWCCA 164 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Du Plessis v R [2024] NSWCCA 164 Elias v R; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 GAR v R (No 2) [2010] NSWCCA 164 Jackson v R [2020] NSWCCA 230 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kaddour v R [2019] NSWCCA 90 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Quinn v R [2023] NSWCCA 229 R v Baartman [2000] NSWCCA 298 R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 Stewart v R (2001) 52 NSWLR 301; [2001] NSWCCA 260 Category: Principal judgment Parties: Jason Reginald Soars (Applicant) The Crown (Respondent) Representation: Counsel: