MS v R [2017] NSWCCA 252

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MS v R [2017] NSWCCA 252 Hearing dates: 8 September 2017 Date of orders: 08 September 2017 Decision date: 27 October 2017 Before: Macfarlan JA at [1]; Beech-Jones J at [71]; Wilson J at [73] Decision: Order on each appeal: (1) Quash the appellant's convictions. (2) Direct that the appellant be retried. Catchwords: CRIMINAL PROCEDURE – unrepresented accused – whether appropriate for Crown Prosecutor to make a closing address – whether trial judge adequately explained aspects of the trial process to the appellant

CRIMINAL PROCEDURE – evidence of child complainants in sexual offence proceedings – whether recording of complainant's interview should have been tendered as an exhibit and given to the jury – consequences of failure to give warning required by s 306X of the Criminal Procedure Act 1986 (NSW)

CRIMINAL PROCEDURE – evidence of complainants in sexual offence proceedings where accused unrepresented – consequences of failure to give warning required by s 294A(7) of the Criminal Procedure Act 1986 (NSW) – consequences of failure to give the appellant an opportunity to reformulate questions in cross-examination of complainant conducted by court appointed person

CRIMINAL PROCEDURE – sexual offence proceedings – context evidence – jury not directed not to use context evidence to support tendency reasoning – real risk that jury might have used evidence for impermissible purpose – direction should have been given

APPEALS – appeals against conviction – whether it was open to the court to conclude that the appellant did not receive fair trials by reason of the cumulative effect of irregularities at trial – convictions quashed and new trials ordered Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6 Criminal Appeal Rules r 4 Criminal Procedure Act 1986 (NSW) ss 294A, 306X Evidence Act 1995 (NSW) Cases Cited: BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66 Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 Hamod v State of New South Wales [2011] NSWCA 375 Hughes v The Queen [2017] HCA 20 JWM v The Queen (2014) 245 A Crim R 538; [2014] NSWCCA 248 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 R v Anastasiou (1991) 21 NSWLR 394 R v ATM [2000] NSWCCA 475 R v E J Smith [1982] 2 NSWLR 608 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Zorad (1990) 19 NSWLR 91 Roach v R (2011) 242 CLR 610; [2011] HCA 12 The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 TKWJ v R [2002] HCA 46; 212 CLR 124 Toalepai v The Queen [2009] NSWCCA 270 Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 Category: Principal judgment Parties: MS (Appellant) Regina (Respondent) Representation: Counsel: S Hall (Appellant) T Smith (Respondent)