Park v R [2023] NSWCCA 71

Park v R [2023] NSWCCA 71

The appeal was upheld because the apparent inconsistency between the acquittals on Counts 1 and 1A and the conviction on Count 2 could not properly be reconciled in light of the trial judge's misdirections about the mental elements for the sexual touching counts; the Liberato direction materially failed to convey that the jury must acquit if the applicant's account might be true; and the direction that delay in complaint was not relevant to credibility misstated s 294 and created a real risk of undermining a central defence argument. These errors gave rise to a real chance that the jury's verdict was affected and that the applicant lost a chance of acquittal, requiring the conviction and...

Jurisdiction
Australia
Judgment Date
27 March 2023
Procedural Posture
Appeal Against Conviction / Court of Criminal Appeal Application for Leave to Appeal and Appeal From District Court Conviction and Sentence
Outcome
Leave to appeal granted to the extent necessary; appeal upheld; conviction and sentence on Count 2 quashed; new trial ordered on Count 2.
Legal Topics
['unreasonable Verdict' 'inconsistent Verdicts' 'juror Confusion' 'liberato Direction' 'delay in Complaint' 'sexual Offences' 'retrial']
['criminal Law' 'criminal Procedure' 'criminal Appeals'] ['unreasonable Verdict' 'inconsistent Verdicts' 'juror Confusion' 'liberato Direction' 'delay in Complaint' 'sexual Offences' '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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Against Conviction / Court of Criminal Appeal Application for Leave to Appeal and Appeal From District Court Conviction and Sentence

Legal Issues

  1. 1 ['Whether the guilty verdict on Count 2 was unreasonable because of possible juror confusion about the counts and alternative counts.' "Whether the guilty verdict on Count 2 was unreasonable because it was inconsistent with acquittals on Counts 1 and 1A and the jury's inability to agree on Count 4." "Whether the trial judge failed to give an adequate Liberato direction, particularly the second limb concerning an accused's account that might be true." 'Whether the trial judge misdirected the jury about the relevance of delay in complaint under s 294 of the Criminal Procedure Act 1986 (NSW).' 'Whether, if the appeal succeeded, the Court should enter an acquittal or order a new trial on Count 2.']

Ratio Decidendi

The appeal was upheld because the apparent inconsistency between the acquittals on Counts 1 and 1A and the conviction on Count 2 could not properly be reconciled in light of the trial judge's misdirections about the mental elements for the sexual touching counts; the Liberato direction materially failed to convey that the jury must acquit if the applicant's account might be true; and the direction that delay in complaint was not relevant to credibility misstated s 294 and created a real risk of undermining a central defence argument. These errors gave rise to a real chance that the jury's verdict was affected and that the applicant lost a chance of acquittal, requiring the conviction and...

Court Disposition

Leave to appeal granted to the extent necessary; appeal upheld; conviction and sentence on Count 2 quashed; new trial ordered on Count 2.

Orders

  • ['Leave to appeal is granted (to the extent necessary) and the appeal is upheld.' "The appellant's conviction and sentence on Count 2 are quashed." 'There be a new trial on Count 2.' 'The proceedings be listed in the arraignment list in the District Court on 21 April 2023.']