Bourke (a pseudonym) v R [2021] NSWCCA 145

Bourke (a pseudonym) v R [2021] NSWCCA 145

The convictions could not stand because the trial judge provided the jury with a written question trail but did not orally take the jury through it, did not relate the evidence to each count, did not identify which elements were in dispute, and did not adequately summarise the Crown and defence cases. In a trial involving multiple similar sexual and indecent assault counts arising from sequential events, those omissions meant the summing up fell well short of what was required, and the errors warranted quashing the convictions and aggregate sentence and ordering a retrial.

Jurisdiction
Australia
Judgment Date
07 July 2021
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal and Appeal Against Convictions and Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; convictions and aggregate sentence quashed; retrial ordered.
Legal Topics
['appeal Against Conviction' 'jury Directions' 'question Trails' 'oral Directions to Jury' 'retrial']
['criminal Law' 'criminal Procedure' 'appeals'] ['appeal Against Conviction' 'jury Directions' 'question Trails' 'oral Directions to Jury' 'retrial']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the trial judge erred by inviting the jury to retire and consider the question trail during the summing up.' 'Whether the trial judge erred by using a question trail without identifying the evidence supporting each count on the indictment.' 'Whether the trial judge erred by relying on the question trail without further explanation or oral directions as to its use.' 'Whether the demonstrated errors required the convictions and aggregate sentence to be quashed and a retrial ordered.']

Ratio Decidendi

The convictions could not stand because the trial judge provided the jury with a written question trail but did not orally take the jury through it, did not relate the evidence to each count, did not identify which elements were in dispute, and did not adequately summarise the Crown and defence cases. In a trial involving multiple similar sexual and indecent assault counts arising from sequential events, those omissions meant the summing up fell well short of what was required, and the errors warranted quashing the convictions and aggregate sentence and ordering a retrial.

Court Disposition

Leave to appeal granted; appeal upheld; convictions and aggregate sentence quashed; retrial ordered.

Orders

  • ['Grant leave to the applicant to appeal.' 'Quash convictions on Counts 1 to 11 of the Indictment dated 16 September 2019.' 'Quash the other convictions entered on 19 September 2019.' 'Quash the aggregate sentence imposed by Colefax SC DCJ on 14 February 2020.' 'Order a re-trial of the appellant.' 'List the...