Ewan v R [2020] NSWCCA 85

Ewan v R [2020] NSWCCA 85

The jury was misdirected by not being told they must be unanimous as to which act(s) of assistance by the accused constituted the offence of being an accessory after the fact; such a direction was required by authorities where discrete acts can each supply a requisite offence element. This absence was a substantial miscarriage of justice, requiring the conviction to be quashed and a new trial ordered.

Parties
Applicant: Stephen Geoffrey Ewan; Respondent: Regina
Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Determination of Leave to Appeal and Substantive Judgment
Outcome
Appeal allowed; conviction quashed; new trial ordered; applicant resentenced on other offences.
Legal Topics
Accessory After the Fact, Jury Directions, Unanimity Direction, Sentencing, Appeal Procedure
Criminal Law Accessory After the Fact Jury Directions Unanimity Direction Sentencing Appeal Procedure

Case Brief

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Parties

Stephen Geoffrey Ewan

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Determination of Leave to Appeal and Substantive Judgment

Legal Issues

  1. 1 Whether the trial judge erred in failing to direct the jury that it must be unanimous as to the particular assistance provided by the accused to constitute the offence of being an accessory after the fact
  2. 2 Whether the trial judge erred in permitting evidence of the conduct of the accused to be used to infer consciousness of guilt
  3. 3 Whether the verdict of the jury was unreasonable

Ratio Decidendi

The jury was misdirected by not being told they must be unanimous as to which act(s) of assistance by the accused constituted the offence of being an accessory after the fact; such a direction was required by authorities where discrete acts can each supply a requisite offence element. This absence was a substantial miscarriage of justice, requiring the conviction to be quashed and a new trial ordered.

Court Disposition

Appeal allowed; conviction quashed; new trial ordered; applicant resentenced on other offences.

Orders

  • Grant leave to appeal.
  • Allow the appeal.