Ignatov v R [2018] NSWCCA 217

Ignatov v R [2018] NSWCCA 217

It was open to the jury to reject the appellant's proposed secondary-transfer scenarios as unreasonable or not fairly arising on the evidence and to be satisfied beyond reasonable doubt of guilt, so the unreasonable-verdict ground failed. However, the appellant's statement to the child's mother had very limited...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 October 2018
Procedural Posture
Criminal Appeal Against Conviction; Crown Appeal Against Sentence / Court of Criminal Appeal Decision on Application for Leave to Appeal Against Conviction and Appeal Against Conviction
Outcome
Leave to appeal against conviction granted; appeal against conviction allowed; conviction and sentence quashed; matter remitted to the District Court for a retrial.
Legal Topics
['sexual Intercourse With a Child Under the Age of 10 Years' 'circumstantial Evidence' 'dna Evidence' 'secondary or Indirect Transfer of Dna' 'unreasonable Verdict' 'evidence Act 1995 (nsw) S 137' 'probative Value and Unfair Prejudice']
['criminal Law' 'evidence' 'criminal Appeals'] ['sexual Intercourse With a Child Under the Age of 10 Years' 'circumstantial Evidence' 'dna Evidence' 'secondary or Indirect Transfer of Dna' 'unreasonable Verdict' 'evidence Act 1995 (nsw) S 137' 'probative Value and Unfair Prejudice']

Source-derived case record

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Procedural Posture

Criminal Appeal Against Conviction; Crown Appeal Against Sentence / Court of Criminal Appeal Decision on Application for Leave to Appeal Against Conviction and Appeal Against Conviction

Legal Issues

  1. 1 ["Whether the jury's verdict was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)." "Whether the presence of the appellant's DNA on the child's genitalia and clothing could reasonably be explained by secondary or indirect transfer consistently with innocence." "Whether evidence of the appellant's statement to the child's mother about not being able to say for sure that he did not do it because he could not remember should have been excluded under s 137 of the Evidence Act 1995 (NSW)."]

Ratio Decidendi

It was open to the jury to reject the appellant's proposed secondary-transfer scenarios as unreasonable or not fairly arising on the evidence and to be satisfied beyond reasonable doubt of guilt, so the unreasonable-verdict ground failed. However, the appellant's statement to the child's mother had very limited probative value and carried a real risk of unfair prejudice because it might be misused as an implied admission or consciousness of guilt; it should have been excluded under s 137 of the Evidence Act 1995 (NSW). That error required the conviction appeal to be allowed and the matter remitted for retrial.

Court Disposition

Leave to appeal against conviction granted; appeal against conviction allowed; conviction and sentence quashed; matter remitted to the District Court for a retrial.

Orders

  • ['Leave to appeal against conviction is granted.' 'Appeal against conviction is allowed.' 'Conviction and sentence are quashed.' 'Remit the matter to the District Court for a retrial.']