AB v R [2023] NSWCCA 165

AB v R [2023] NSWCCA 165

The Crown Prosecutor's submissions concerning the applicant's silence and alleged lie, particularly in rebutting doli incapax, amounted to an emphatic appeal to consciousness of guilt reasoning. To ensure a fair trial the jury needed either an Edwards direction explaining the limits on use of the alleged lie and silence or a Zoneff direction precluding that reasoning. The failure to give such a direction realistically could have affected the guilty verdict and caused a miscarriage of justice. The majority verdict ground failed because, in the circumstances of a short and not especially complex trial, two jury notes stating that unanimity could not be reached and further deliberation after...

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Application for Leave to Appeal Against Conviction / Court of Criminal Appeal Appeal From District Court Conviction
Outcome
Leave granted, appeal allowed, conviction set aside and verdict of acquittal entered.
Legal Topics
['appeal Against Conviction' 'sexual Intercourse With Child Under 10 Years' 'doli Incapax' 'lies Direction' 'zoneff Direction' 'consciousness of Guilt Reasoning' 'majority Verdict' 'miscarriage of Justice' 'acquittal Rather Than Retrial']
['criminal Law' 'criminal Procedure' 'evidence' 'children and Criminal Responsibility'] ['appeal Against Conviction' 'sexual Intercourse With Child Under 10 Years' 'doli Incapax' 'lies Direction' 'zoneff Direction' 'consciousness of Guilt Reasoning' 'majority Verdict' 'miscarriage of Justice' 'acquittal Rather Than Retrial']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Conviction / Court of Criminal Appeal Appeal From District Court Conviction

Legal Issues

  1. 1 ["Whether a miscarriage of justice was occasioned by the trial judge's failure to give a lies direction or Zoneff direction concerning the applicant's silence and alleged lie." 'Whether it was open to the trial judge to conclude that the preconditions for taking a majority verdict under s 55F(2)(b) of the Jury Act 1977 (NSW) were satisfied.' 'If an appeal ground was upheld, whether the Court should order a new trial or enter an acquittal.']

Ratio Decidendi

The Crown Prosecutor's submissions concerning the applicant's silence and alleged lie, particularly in rebutting doli incapax, amounted to an emphatic appeal to consciousness of guilt reasoning. To ensure a fair trial the jury needed either an Edwards direction explaining the limits on use of the alleged lie and silence or a Zoneff direction precluding that reasoning. The failure to give such a direction realistically could have affected the guilty verdict and caused a miscarriage of justice. The majority verdict ground failed because, in the circumstances of a short and not especially complex trial, two jury notes stating that unanimity could not be reached and further deliberation after...

Court Disposition

Leave granted, appeal allowed, conviction set aside and verdict of acquittal entered.

Orders

  • ['The time in which the application for leave to appeal may be brought be extended up to and including 16 September 2022.' 'The applicant be granted leave to raise grounds 1 and 2 of the Notice of Appeal.' 'Ground 1 be upheld.' 'The appeal be allowed.' "The applicant's conviction for an offence under s 66A(1) of the...