Lin v R [2023] NSWCCA 268

Lin v R [2023] NSWCCA 268

The appeal raised a question of law alone because it challenged the articulation of the elements of the offence under s 66EA of the Crimes Act 1900 (NSW), so leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) was not required. However, leave under r 4.15 was required because the applicant took no objection at trial and expressly accepted the proposed directions. Leave under r 4.15 was refused because the directions accorded with the Court of Criminal Appeal's binding decision in MK v R; RB v R [2023] NSWCCA 180, which remained the law notwithstanding a pending High Court special leave application. The pseudonym order was set aside because the parties informed the Court, and the...

Jurisdiction
Australia
Judgment Date
27 October 2023
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal in the Court of Criminal Appeal
Outcome
Leave under r 4.15 refused; pseudonym order set aside.
Legal Topics
['persistent Sexual Abuse of a Child' 'jury Directions' 'question of Law Alone' 'leave to Appeal' 'failure to Object at Trial' 'pseudonym Order']
['criminal Law' 'criminal Procedure' 'appeals'] ['persistent Sexual Abuse of a Child' 'jury Directions' 'question of Law Alone' 'leave to Appeal' 'failure to Object at Trial' 'pseudonym Order']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the trial judge's directions to the jury on the elements of the offence under s 66EA of the Crimes Act 1900 (NSW) were erroneous and inadequate." 'Whether leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) was required.' 'Whether leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was required because no objection was taken to the directions at trial.' 'Whether leave under r 4.15 should be granted where the directions accorded with authority of the Court of Criminal Appeal but a special leave application was pending in the High Court.' 'Whether the pseudonym order requiring the applicant to be referred to as BQL should be set aside.']

Ratio Decidendi

The appeal raised a question of law alone because it challenged the articulation of the elements of the offence under s 66EA of the Crimes Act 1900 (NSW), so leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) was not required. However, leave under r 4.15 was required because the applicant took no objection at trial and expressly accepted the proposed directions. Leave under r 4.15 was refused because the directions accorded with the Court of Criminal Appeal's binding decision in MK v R; RB v R [2023] NSWCCA 180, which remained the law notwithstanding a pending High Court special leave application. The pseudonym order was set aside because the parties informed the Court, and the...

Court Disposition

Leave under r 4.15 refused; pseudonym order set aside.

Orders

  • ['Refuse leave under r 4.15 of the of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to allow the single ground raised by the applicant as a ground of appeal.' 'Set aside the pseudonym order made by Mahony SC DCJ on 24 June 2022 which required the applicant to be referred to as BQL.']