Scott v R [2020] NSWCCA 81

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Scott v R [2020] NSWCCA 81 Hearing dates: 4 September 2019 Date of orders: 29 April 2020 Decision date: 29 April 2020 Before: Brereton JA at [1] Hamill J at [2] Fagan J at [172] Decision: (1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence allowed. (5) Quash the sentence imposed in the District Court and in lieu thereof: (6) The applicant is sentenced to an aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring on 4 December 2020. (7) The applicant will be eligible for release to parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW – indecent assault of 8 year old grandchild – allegations of kissing on or near vagina – sexual intercourse – cunnilingus – whether trial miscarried by failure of counsel to lead evidence of alibi – new evidence presented on appeal – whether evidence established alibi – where time not of the essence – where indictment specified range of dates – whether miscarriage of justice – whether verdict unreasonable – analysis of evidence – audio visual recordings – whether appellate court should review evidence played to jury – where transcripts referred to gestures – gestures significant in determining whether prosecution proved sexual intercourse – advantages enjoyed by jury – verdicts not unreasonable