BA v R [2015] NSWCCA 189

BA v R [2015] NSWCCA 189

Leave was granted because the sufficiency of evidence of an element of count 5 was fundamental and, if lacking, would cause a miscarriage of justice. On the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant engaged in sexual intercourse in the form of cunnilingus. The complainant's evidence about being kissed "near my bagina" was elicited by leading questions, remained ambiguous, and was not resolved by the marked diagram, the grandmother's hearsay complaint, later trial evidence, or surrounding circumstances. Accordingly the verdict on count 5 was unreasonable and could not be supported having regard to the evidence.

Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Application for Leave to Appeal Against Conviction / Court of Criminal Appeal From Conviction on Count 5 in the District Court of NSW
Outcome
Leave to appeal against conviction on count 5 granted; appeal allowed; conviction quashed; verdict of acquittal entered; applicant to be immediately released from custody.
Legal Topics
['conviction Appeal' 'unreasonable Verdict' 'aggravated Sexual Intercourse With a Child Under 10 Years' 'cunnilingus as Sexual Intercourse' 'jury Directions' 'extension of Time']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'unreasonable Verdict' 'aggravated Sexual Intercourse With a Child Under 10 Years' 'cunnilingus as Sexual Intercourse' 'jury Directions' 'extension of Time']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal Against Conviction / Court of Criminal Appeal From Conviction on Count 5 in the District Court of NSW

Legal Issues

  1. 1 ['Whether the verdict on count 5 was unreasonable and could not be supported having regard to the evidence.' 'Whether the evidence was capable of establishing beyond reasonable doubt that sexual intercourse, in the form of cunnilingus, took place.' 'Whether the trial judge erred in directions as to what was necessary to satisfy the element of sexual intercourse, namely cunnilingus.' 'Whether leave should be granted to rely on a ground not taken at trial and to extend time to seek leave to appeal.']

Ratio Decidendi

Leave was granted because the sufficiency of evidence of an element of count 5 was fundamental and, if lacking, would cause a miscarriage of justice. On the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant engaged in sexual intercourse in the form of cunnilingus. The complainant's evidence about being kissed "near my bagina" was elicited by leading questions, remained ambiguous, and was not resolved by the marked diagram, the grandmother's hearsay complaint, later trial evidence, or surrounding circumstances. Accordingly the verdict on count 5 was unreasonable and could not be supported having regard to the evidence.

Court Disposition

Leave to appeal against conviction on count 5 granted; appeal allowed; conviction quashed; verdict of acquittal entered; applicant to be immediately released from custody.

Orders

  • ['Leave should be granted to the applicant to bring this application for leave to appeal against conviction in respect of count 5.' 'Leave to appeal against conviction in respect of count 5 should be granted and the appeal allowed.' "The applicant's conviction for count 5 should be quashed and a verdict of acquittal...