Black v R [2013] NSWCCA 183

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Black v R [2013] NSWCCA 183 Hearing dates: 25 June 2013 Decision date: 06 August 2013 Before: Basten JA at [1] R A Hulme J at [2] Garling J at [118] Decision: Leave to appeal against conviction refused Catchwords: CRIMINAL LAW - appeal - convictions for sexual offences - whether verdicts were unreasonable and unsupported by the evidence - no question of principle Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: Jones v R [1997] HCA 56; 191 CLR 439 Lee, Do Young v Regina [2013] NSWCCA 68 M v R (1994) 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 SKA v R [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Stephen Stanley Black Regina Representation: Counsel: Applicant in person Ms T Smith (Crown) Solicitors: Solicitor for Public Prosecutions File Number(s): 2007/7395 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-12-11 00:00:00 Before: Coolahan DCJ File Number(s): 2007/7395

Judgment 1BASTEN JA: I agree with R A Hulme J that the present application is to be understood as a challenge to the jury verdict on the ground that it was unreasonable, or could not be supported, having regard to the evidence: Criminal Appeal Act 1912 (NSW), s 6(1). Having considered all of the matters raised by the applicant, including the transcript of the text messages which was not in evidence (but is referred to by R A Hulme J), in accordance with the principles identified in Lee, Do Young v Regina [2013] NSWCCA 68 at [196]-[210], I agree with R A Hulme J that the application should be dismissed. 2R A HULME J: Mr Stephen Black ("the applicant") was arraigned on 26 May 2008 before Coolahan DCJ and entered pleas of not guilty to four counts of aggravated sexual assault (s 61J of the Crimes Act 1900 (NSW)), two counts of indecent assault (s 61L), one count of inciting an act of indecency (s 61N(2)) and one count of larceny (s 117). 3On 13 June 2008, a jury returned verdicts of guilty for each of the sexual offences and a verdict of not guilty for the larceny offence. The applicant was sentenced on 11 December 2008. 4An application for leave to appeal against conviction and sentence was filed on 19 September 2011. There was some confusion at the hearing about whether an extension of time to apply for leave to appeal was required. It has since been found that the Registrar of the Court extended time until 30 October 2011. 5The applicant appeared in person in respect of his application for leave to appeal against conviction. He informed the Court that consideration is being given by Legal Aid New South Wales to the proposed appeal against sentence. It would seem his case is among those that are being reviewed in the light of the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. While it is undesirable that there be separate hearings in relation to conviction and sentence, in the circumstances it seems appropriate to proceed to determine the conviction aspect of the proceedings. 6The Notice of Application for Leave to Appeal identifies seven "Points of Appeal". Written submissions, which were prepared with some legal assistance, were filed by the applicant on 11 December 2012. They include the following overriding assertion: The grounds for this appeal against conviction are that when viewed collectively, the inconsistencies in the victim's testimony, a lack of any substantial DNA evidence and certain factual errors contained in other evidence presented at trial is such that the verdict of the jury in respect of the offences upon which I was convicted is unreasonable or cannot be reasonably supported. 7The "grounds" addressed in the written submissions do not conform with the "points of appeal" identified in the Notice of Application for Leave to Appeal. I have combined and reformulated the contentions in both documents into a number of topics. I accept the characterisation in the written submissions for the respondent that they should be regarded as particulars of an overall assertion that the verdicts of the jury are unreasonable, or cannot be supported, having regard to the evidence: s 6(1) of the Criminal Appeal Act 1912 (NSW).