Mark McKey v Regina [2012] NSWCCA 1

Mark McKey v Regina [2012] NSWCCA 1

The cross-examination and closing address invited the jury to treat the appellant's failure to protest his innocence or further engage with KN and N as conduct consistent with guilt. In a word-against-word case, there was a reasonable possibility that the jury used that conduct to support the complainant's...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 February 2012
Procedural Posture
Criminal Appeal Against Conviction / Court of Criminal Appeal
Outcome
Appeal against conviction allowed; conviction quashed; sentence set aside; verdict of acquittal entered.
Legal Topics
['sexual Intercourse With a Child Above the Age of 14 Years and Under the Age of 16 Years' 'appeal Against Conviction' 'miscarriage of Justice' 'post Offence Conduct' 'consciousness of Guilt' 'implied Admissions' 'jury Directions']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Intercourse With a Child Above the Age of 14 Years and Under the Age of 16 Years' 'appeal Against Conviction' 'miscarriage of Justice' 'post Offence Conduct' 'consciousness of Guilt' 'implied Admissions' 'jury Directions']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal Against Conviction / Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the trial judge erred in failing to adequately direct the jury in relation to the appellant's silence or inaction in response to allegations put to him by KN and N." "Whether the trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellant's silence or inaction could be used as evidence of consciousness of guilt." "Whether the trial judge erred in failing to adequately direct the jury in relation to the prosecutor's submission to discount the whole of the appellant's evidence due to his silence or inaction in response to the allegation."]

Ratio Decidendi

The cross-examination and closing address invited the jury to treat the appellant's failure to protest his innocence or further engage with KN and N as conduct consistent with guilt. In a word-against-word case, there was a reasonable possibility that the jury used that conduct to support the complainant's allegation without proper directions. The trial judge should have directed the jury to examine whether any consciousness-of-guilt inference was reasonable and justifiable and to exclude alternative inferences inconsistent with guilt, including that the appellant acted on his sister's advice. The absence of such directions caused a miscarriage of justice, so the appeal was allowed and...

Court Disposition

Appeal against conviction allowed; conviction quashed; sentence set aside; verdict of acquittal entered.

Orders

  • ['Appeal against conviction allowed.' 'The conviction is quashed and the sentence imposed on 8 October 2009 is set aside.' 'Enter a verdict of acquittal.']