Ngo v R [2023] NSWCCA 201

Ngo v R [2023] NSWCCA 201

The majority held that the applicant failed to establish factual inconsistency between the acquittal on count 2 and the convictions on counts 4 and 5 because Exhibit 3 and the differences in the evidence on consent and the applicant's knowledge provided rational bases for the mixed verdicts. The majority also held that the impugned bad character evidence did not form part of the Crown case, the prosecutor was not obliged to put it to the applicant, and the absence of a further anti-tendency direction did not cause a miscarriage of justice because the defence case attacked the complainant's credibility and the failure to seek such a direction reflected a legitimate forensic choice or did...

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal Against Convictions From the District Court
Outcome
Leave granted; appeal dismissed.
Legal Topics
['sexual Offences' 'break and Enter' 'inconsistent Verdicts' 'bad Character Evidence' 'anti Tendency Direction' 'miscarriage of Justice' 'jury Discharge']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Offences' 'break and Enter' 'inconsistent Verdicts' 'bad Character Evidence' 'anti Tendency Direction' 'miscarriage of Justice' 'jury Discharge']

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal Against Convictions From the District Court

Legal Issues

  1. 1 ['Whether the verdicts of guilty on counts 4 and 5 were inconsistent with the acquittal on count 2.' "Whether the admission and use of evidence said to show the applicant's bad character, including the absence of cross-examination about it and the Crown's address, resulted in a miscarriage of justice." 'Whether the failure to give a direction in accordance with s 95 of the Evidence Act 1995 (NSW) resulted in a miscarriage of justice.']

Ratio Decidendi

The majority held that the applicant failed to establish factual inconsistency between the acquittal on count 2 and the convictions on counts 4 and 5 because Exhibit 3 and the differences in the evidence on consent and the applicant's knowledge provided rational bases for the mixed verdicts. The majority also held that the impugned bad character evidence did not form part of the Crown case, the prosecutor was not obliged to put it to the applicant, and the absence of a further anti-tendency direction did not cause a miscarriage of justice because the defence case attacked the complainant's credibility and the failure to seek such a direction reflected a legitimate forensic choice or did...

Court Disposition

Leave granted; appeal dismissed.

Orders

  • ['Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.' 'Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).' 'Dismiss the appeal.']