McCann v R [2014] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McCann v R [2014] NSWCCA 79 Hearing dates: 9 May 2014 Decision date: 09 May 2014 Before: Leeming JA; Fullerton J; RA Hulme J Decision: 1. To the extent necessary, grant leave to appeal. 2. Appeal allowed. 3. Set aside the appellant's conviction in respect of Count 2, entered on 26 March 2013, and in lieu thereof enter a verdict of acquittal. Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - Crown case turned on testimonial evidence of complainant of three assaults - inconsistent verdicts - jury convicted on second count and acquitted on first and third counts - second and third counts alleged to have occurred on same occasion - nothing in circumstances to conclude that complainant's evidence on second count more reliable than on other counts - relevance of lengthy jury deliberations and reactions of trial judge and counsel to jury's verdicts - conviction quashed and verdict of acquittal entered Legislation Cited: Crimes Act 1900 (NSW), s 61M(2), s 66A Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6(1) Cases Cited: Black v The Queen (1993) 179 CLR 44 Jones v The Queen (1997) 191 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 Peiris v R [2014] NSWCCA 58 R v Bonat [2004] NSWCCA 240 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v NEK [2001] NSWCCA 392 Category: Principal judgment Parties: David John McCann (Appellant) Regina (Respondent) Representation: Counsel: K Traill (Appellant) V Lydiard (Crown) Solicitors: Peter Murphy (Appellant) Solicitor of Public Prosecutions (Crown) File Number(s): 2011/99609 Decision under appeal Date of Decision: 2013-03-26 00:00:00 Before: Charteris DCJ File Number(s): 2011/99609