Cusack v Regina [2009] NSWCCA 155

New South Wales Court of Criminal Appeal

CITATION: Cusack v Regina [2009] NSWCCA 155 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 March 2009

JUDGMENT DATE: 4 June 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 116; Howie J at 117

DECISION: The appeal is dismissed.

CATCHWORDS: CRIMINAL – sexual intercourse and related offences – discrepancies in the evidence of the witnesses – matter for the jury to assess - CRIMINAL – sexual intercourse and related offences – discrepancies in the evidence of the witnesses – accumulation of inconsistent and unsatisfactory evidence – question whether verdict or verdicts is/are unsafe and unsatisfactory – jury correctly directed as to the matters to consider in determining verdicts - CRIMINAL – sexual intercourse and related offences – whether a comment by counsel has the effect of reversing the onus of proof – whether a comment by counsel puts an accused in the position where, unless he or she can disprove the complainant's evidence, the complainant's evidence should be accepted – whether a question has that effect has to be considered in the context of the trial itself and the manner in which it was treated by the trial judge – requirement that trial judge give a clear direction on the onus of proof in such circumstances

Crimes Act 1900, s 61M, s 66C, s 66D LEGISLATION CITED: Criminal Appeal Act 1912, s 6(1) Criminal Appeal Rules, r 4 Evidence Act 1995, s 66

CATEGORY: Principal judgment

Doe v R [2008] NSWCCA 203 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 CASES CITED : Palmer v R [1998] HCA 2; (1998) 193 CLR 1 R v E (1996) 39 NSWLR 450 R v Markulevski [2001] NSWCCA 290; (2001) 125 A Crim R 186 R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported)