MK v R [2014] NSWCCA 274

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MK v R [2014] NSWCCA 274 Hearing dates: 12.09.2014 Decision date: 26 November 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [134] Hamill J at [135] Decision: 1. To the extent necessary, leave to appeal is granted. 2. Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed. 3. The convictions recorded against the applicant on 4 October 2012 are quashed. 4. The matter is remitted to the District Court for retrial. Catchwords: CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving of unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses - discrepancies in their descriptions - both child witnesses identify very distinctive feature of assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to jury - no miscarriage of justice - this ground of appeal dismissed - matter remitted to District Court for new trial. Legislation Cited: Crimes Act 1900 - s61M(2) , s86(1)(b) Criminal Appeal Rules - r 4 Evidence Act 1995 (NSW) - s13 Cases Cited: Dyers v The Queen [2002] HCA 45; 210 CLR 285 FP v R [2012] NSWCCA 182 Knight v Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Pease v R [2009] NSWCCA 136 R v RAG [2006] NSWCCA 343 RJ v R [2010] NSWCCA 263 Sami Kurdi v Regina [2011] NSWCCA 179 SH v Regina [2012] NSWCCA 79; 83 NSWLR 258 SKA v The Queen [2011] HCA 13; 243 CLR 400 Warren v Coombs (1979) 142 CLR 531 at 551 Category: Principal judgment Parties: MK - Applicant Regina - Respondent Crown Representation: Counsel: Mr H Dhanji SC - Applicant Ms T Smith - Respondent Crown Solicitors: Abigail Bannister - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent File Number(s): 2011/43255 Decision under appeal Date of Decision: 2012-10-04 00:00:00 Before: Quirk DCJ File Number(s): 2011/43255