Casey v R [2020] NSWCCA 177

Casey v R [2020] NSWCCA 177

The appeal was dismissed because any inadequacy in the Markuleski direction did not occasion a miscarriage of justice; the different verdicts on the counts concerning JB were explicable and not inconsistent. The 2018 retrial, using edited recorded evidence, did not cause irremediable unfairness or amount to an abuse of process. AL's evidence was admissible tendency evidence because it had substantial probative value beyond a bare sexual interest in pubescent boys. Having independently assessed the evidence, the Court was not persuaded that the guilty verdicts on counts 1 and 4 were unreasonable.

Jurisdiction
Australia
Judgment Date
29 July 2020
Procedural Posture
Application for Leave to Appeal Against Conviction / Court of Criminal Appeal From District Court Convictions After Jury Trial
Outcome
Leave granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'jury Directions' 'markuleski Direction' 'abuse of Process' 'permanent Stay' 'tendency Evidence' 'unreasonable Verdict' 'child Sexual Offences']
['criminal Law' 'criminal Procedure' 'evidence Law'] ['appeal Against Conviction' 'miscarriage of Justice' 'jury Directions' 'markuleski Direction' 'abuse of Process' 'permanent Stay' 'tendency Evidence' 'unreasonable Verdict' 'child Sexual Offences']

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Procedural Posture

Application for Leave to Appeal Against Conviction / Court of Criminal Appeal From District Court Convictions After Jury Trial

Legal Issues

  1. 1 ["Whether a miscarriage of justice was occasioned by the trial judge's failure to direct the jury that they could take into account any reasonable doubt on one count when assessing the evidence on other counts." 'Whether the continued prosecution after an earlier jury was hung on several counts, and after evidence was edited to remove stayed counts and acquittals, constituted an abuse of process giving rise to a miscarriage of justice.' 'Whether the evidence of AL was wrongly admitted as tendency evidence under the Evidence Act 1995 (NSW).' 'Whether the guilty verdicts on counts 1 and 4 were unreasonable or could not be supported having regard to the evidence.']

Ratio Decidendi

The appeal was dismissed because any inadequacy in the Markuleski direction did not occasion a miscarriage of justice; the different verdicts on the counts concerning JB were explicable and not inconsistent. The 2018 retrial, using edited recorded evidence, did not cause irremediable unfairness or amount to an abuse of process. AL's evidence was admissible tendency evidence because it had substantial probative value beyond a bare sexual interest in pubescent boys. Having independently assessed the evidence, the Court was not persuaded that the guilty verdicts on counts 1 and 4 were unreasonable.

Court Disposition

Leave granted; appeal dismissed.

Orders

  • ['If leave be required to rely on ground 1, grant leave under rule 4 of the Criminal Appeal Rules in respect of that ground.' 'Grant leave to appeal on grounds 1, 2, 3 and 4.' 'Dismiss the appeal.']