BC v R [2019] NSWCCA 111

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BC v R [2019] NSWCCA 111 Hearing dates: 3 April 2019 Decision date: 05 June 2019 Before: Leeming JA; Ierace J; Hidden AJ Decision: (1) Grant leave to appeal and extend the time to appeal to 11 May 2018.

(2) Quash the applicant's convictions for counts 1 to 3 and enter verdicts of acquittal for those counts.

(3) Dismiss the appeal against conviction in respect of counts 4 to 20.

(4) Direct that the applicant file and serve any further submissions as to sentence within 21 days of today, and direct the respondent to file and serve any submissions in response within 14 days thereafter, those submissions to include whether any application is made for a further oral hearing, in default of which the remaining issues will be determined on the papers. Catchwords: CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 5 Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 130A, 306B Evidence Act 1995 (NSW), ss 97, 101, Dictionary Cases Cited: Armstrong v R [2017] NSWCCA 323 Aubrey v R [2015] NSWCCA 323 BC v The Queen [2015] NSWCCA 327; 257 A Crim R 340 BC v The Queen [2016] HCASL 166 BP v Regina; SW v Regina [2006] NSWCCA 172 DAO v R (2011) 81 NSWLR 558; [2011] NSWCCA 63 DS v R [2018] NSWCCA 195 El-Ali v R [2015] NSWCCA 300 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Johnson v The Queen [2018] HCA 48; 92 ALJR 1018 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 McPhillamy v R [2017] NSWCCA 130 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v ALH (2003) 6 VR 276; [2003] VSCA 129 R v Grech; R v Kadir [2017] NSWCCA 288 Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75 RH v R [2014] NSWCCA 71 RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 Turner v R [2017] NSWCCA 304 Category: Principal judgment Parties: BC (Applicant) Regina (Respondent) Representation: Counsel: J Stratton SC with T Hennessy (Applicant) B Baker (Respondent)