NW v R [2014] NSWCCA 217

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: NW v R [2014] NSWCCA 217 Hearing dates: 23/07/2014 Decision date: 17 October 2014 Jurisdiction: Criminal Before: Hoeben CJ at CL at [1] McCallum J at [2] Garling J at [8] Decision: (1) Appeal allowed; (2) Convictions entered on 24 September 2013 in respect of Counts 1 and 2 on the Indictment are quashed; (3) Order that there be a new trial. Catchwords: CRIMINAL LAW - appeal - appeal against convictions - appellant convicted of possession of child abuse material and use of child under the age of 14 years for the production of child abuse material - terms of Indictment incorrect - statutory changes during periods alleged in Indictment - offence of using a child for the production of child abuse material did not exist for the period charged - analogous offence of using child for pornographic purposes materially different -definition of 'child abuse material' broader than definition of 'for pornographic purposes' - Crown submissions at trial addressed broader definition -miscarriage of justice - offence of possession of child abuse material - maximum penalty for offence increased during offence period - offence only existed for portion of the period covered by the Indictment - jury could not have properly returned a verdict which accorded with the charge as framed unless satisfied of possession after amendment dates Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Child Pornography and Abuse Material) Act 2010 Crimes Amendment (Sexual Offences) Act 2008 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 Category: Principal judgment Parties: NW (Applicant) Regina (Crown) Representation: Counsel: J P Lo Schiavo (Applicant) V Lydiard (Crown) Solicitors: Bayside Lawyers (Applicant) S Kavanagh (Crown) File Number(s): 2012/29715 Publication restriction: Suppression of applicant's name Decision under appeal Date of Decision: 2013-09-24 00:00:00 Before: Letherbarrow DCJ File Number(s): 2012/29715