DC v R [2019] NSWCCA 234

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DC v R [2019] NSWCCA 234 Hearing dates: 17 June 2019 Date of orders: 02 October 2019 Decision date: 02 October 2019 Before: Bathurst CJ at [1]; Price J at [5]; N Adams J at [160] Decision: (1) Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 3. (2) Allow the appeal. (3) Quash the convictions and sentences. (4) Order that there be a re-trial of the appellant. (5) Remit the matter for mention at the District Court at Sydney on 11 October 2019 at 9.30am. Catchwords: CRIME – Appeals – Appeal against convictions – sexual assault – rule 4 of the Criminal Appeal Rules applies to grounds of appeal – whether error by judge in admitting appellant's answers in an ERISP where no objection taken at trial – forensic choice by appellant's counsel – appellant gives evidence at trial – admissible as prior inconsistent statements – admissible as admissions – no miscarriage of justice – whether error by judge in giving direction on lies or on consciousness of guilt – forensic choice by appellant's counsel that no direction be given – Crown's closing address creates risk of consciousness of guilt reasoning – whether appellant bound by forensic choice made by trial counsel – whether fairness to appellant required a direction on lies notwithstanding trial counsel's request – whether miscarriage of justice was occasioned Legislation Cited: Crimes Act 1900 (NSW) ss 66A, 61M Criminal Appeal Rules r 4 Evidence Act 1995 (NSW) ss 43, 55, 56, 81, 137 Cases Cited: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 R v Cameron (1983) 2 NSWLR 66 Roos v R [2019] NSWCCA 67 Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65 The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Texts Cited: The Honourable Justice V Bell AC, "Jury Directions: the Struggle for Simplicity and Clarity, Banco Court Lecture, Supreme Court of Queensland, 20 September 2018", Banco Court Lecture, Supreme Court of Queensland, 20 September 2018. Category: Principal judgment Parties: DC (Appellant) Regina (Respondent) Representation: Counsel: Mr T Ramrakha (Appellant) Ms B Baker (Respondent)