JH v R [2017] NSWCCA 22

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JH v R [2017] NSWCCA 22 Hearing dates: 17 October 2016 Date of orders: 03 March 2017 Decision date: 03 March 2017 Before: Hoeben CJ at CL at [1] Davies J at [1] Bellew J at [1] Decision: (1) On the conviction appeal: (a) Leave to appeal granted. (b) Appeal dismissed.

(2) On the sentence appeal: (a) Leave to appeal granted. (b) Appeal dismissed. Catchwords: CRIMINAL LAW – manslaughter – unlawful and dangerous act – appeal against conviction – applicant in a group who bashed and kicked victim – whether verdict was unreasonable – reliability of identification evidence – whether sufficient evidence of motive – whether miscarriage of justice by incompetence of trial counsel – whether other evidence should have been led to detract from Crown case on motive – whether evidence should have been led of a second attack not involving applicant – whether applicant properly advised of his right to give evidence – whether miscarriage of justice by prosecutor's remarks to jury

EVIDENCE – application to lead new evidence on appeal – whether new evidence was fresh evidence – whether evidence of sufficient cogency that innocence is shown or to give rise to a reasonable doubt – whether miscarriage of justice where evidence not led Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Alseedi v R [2009] NSWCCA 185 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Field v R [2015] NSWCCA 332 Kees Langelaar v R [2016] NSWCCA 143 Lane v R [2013] NSWCCA 317; 241 A Crim R 321 MG v R; AE v R [2016] NSWCCA 228 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Birks (1990) 19 NSWLR 677 R v Gordon (1994) 71 A Crim R 459 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v LLM [2005] NSWCCA 302 The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581 Category: Principal judgment Parties: JH (Applicant) Crown (Respondent) Representation: Counsel: P Coady (Applicant) M Cinque SC (Crown)