Balachandran v R [2020] NSWCCA 12

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Balachandran v R [2020] NSWCCA 12 Hearing dates: 16 and 29 August 2019 Decision date: 12 February 2020 Before: White JA at [1]; Johnson J at [270]; Lonergan J at [275] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether primary judge in summing-up failed to balance adequately the defence and Crown cases – primary judge entitled to remind the jury of evidence given in the course of the trial which impacts on the defence or Crown case – primary judge entitled to suggest to the jury that if they accept certain evidence it would be highly supportive of other evidence unfavourable to the defence – whether primary judge undermined the defence case through raising matters of speculative possibility rather than addressing the evidence – no miscarriage of justice shown in light of the summing-up as a whole

CRIME — Appeals — Leave to adduce evidence on appeal — Fresh evidence – whether evidence fresh evidence or new evidence where witness was a co-accused who pleaded guilty and agreed to a statement of facts unfavourable to the appellant which was later recanted – no knowledge of the unfavourable statement of facts at time decision made not to call or to ask the Crown not to call – evidence not fresh evidence as a conscious forensic decision made not to call the witness at the time of the trial

CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether verdict to convict unreasonable in light of new evidence – whether verdict to convict unreasonable in light of contradictory evidence ventilated at trial – where new evidence is of low probative value and raises significant reliability issues due to intoxication and inconsistency – where all of the relevant discrepancies in the evidence identifying the appellant were put to the jury and capable of resolution – no reasonable doubt raised Legislation Cited: Crimes Act 1958 (Vic), s 568 Criminal Appeal Act 1912 (NSW), s 6 Evidence Act 1995 (NSW), s 137 Cases Cited: Libke v The Queen (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Mulholland v R [2018] NSWCCA 299 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v RTB [2002] NSWCCA 104 Ratten v The Queen (1974) 131 CLR 510 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smith v New South Wales Bar Association (1992) 176 CLR 256 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Whitlam v Australian Security and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183 Category: Principal judgment Parties: Sasikaran Balachandran (Appellant) Regina (Respondent) Representation: Counsel: D Dalton SC (Appellant) M Cinque SC with K Jeffreys (Respondent)