BA v R [2015] NSWCCA 189

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BA v R [2015] NSWCCA 189 Hearing dates: 3 July 2015 Decision date: 17 July 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [86] Campbell J at [87] Decision: (1) Leave should be granted to the applicant to bring this application for leave to appeal against conviction in respect of count 5. (2) Leave to appeal against conviction in respect of count 5 should be granted and the appeal allowed. (3) The applicant's conviction for count 5 should be quashed and a verdict of acquittal entered. (4) The applicant should be immediately released from custody. Catchwords: CRIMINAL LAW – conviction appeal – aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 – whether verdict unreasonable and cannot be supported having regard to the evidence – whether evidence capable of establishing that sexual intercourse took place – complainant aged 6 – evidence of complainant consistent with sexual intercourse not having taken place – not open to jury to find beyond reasonable doubt that sexual intercourse took place – whether erroneous directions given by trial judge as to the elements of the offence of "sexual intercourse" – necessity to have regard for way in which the trial was run – no error in trial judge's directions – appeal should be allowed – applicant should be released. Legislation Cited: Crimes Act 1900 (NSW) – s 61H, s 61M(2), 61O(2), 66A(2) Criminal Appeal Act 1912 (NSW) – s 6(1) Cases Cited: M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Picken v R [2007] NSWCCA 319 R v Abusafiah (1991) 24 NSWLR 531 at 536 R v BA [2014] NSWCCA 148 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 SKA v R [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: BA – Applicant Regina – Respondent Crown Representation: Counsel: G Bashir SC – Applicant P Ingram SC – Respondent Crown