MK v R [2014] NSWCCA 274

MK v R [2014] NSWCCA 274

The trial was not conducted according to law because the trial judge failed to comply with the mandatory requirements of s13(5)(c) of the Evidence Act 1995 (NSW) in relation to both child witnesses. As the necessary directions were not given, the children were not competent to give unsworn evidence. This defect required that the convictions be quashed and a new trial ordered. The other grounds of appeal (unreasonableness of the verdict and miscarriage of justice by misdirection) were not made out.

Parties
Applicant: MK; Respondent Crown: Regina
Jurisdiction
Australia
Judgment Date
26 November 2014
Procedural Posture
Criminal Appeal / Decision on Conviction Appeal
Outcome
Appeal allowed; convictions quashed; new trial ordered.
Legal Topics
Competence of Child Witnesses, Unsworn Evidence, Identification Evidence, Miscarriage of Justice, Onus of Proof, Jury Directions, Retrial
Criminal Law Competence of Child Witnesses Unsworn Evidence Identification Evidence Miscarriage of Justice Onus of Proof Jury Directions Retrial

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 3 Authorities cited 15 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

MK

Applicant

Regina

Respondent Crown

Procedural Posture

Criminal Appeal / Decision on Conviction Appeal

Legal Issues

  1. 1 Whether the trial was conducted according to law in allowing child witnesses to give unsworn evidence
  2. 2 Whether the verdict was unreasonable or unsupported by the evidence
  3. 3 Whether there was a miscarriage of justice due to Crown submissions or trial judge's summing up

Ratio Decidendi

The trial was not conducted according to law because the trial judge failed to comply with the mandatory requirements of s13(5)(c) of the Evidence Act 1995 (NSW) in relation to both child witnesses. As the necessary directions were not given, the children were not competent to give unsworn evidence. This defect required that the convictions be quashed and a new trial ordered. The other grounds of appeal (unreasonableness of the verdict and miscarriage of justice by misdirection) were not made out.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered.

Orders

  • To the extent necessary, leave to appeal is granted.
  • Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed.