ZL v R [2023] NSWCCA 279

ZL v R [2023] NSWCCA 279

The appeal was dismissed because, making an independent assessment of the whole of the evidence, it was open to the jury to accept the complainant's evidence beyond reasonable doubt and to reject, or regard as mistaken, the evidence of the applicant's mother and stepfather about boxes and bags obstructing the spare room. The prosecutor was not required in the circumstances to seek leave under s 38 of the Evidence Act 1995 (NSW) before submitting that those witnesses may have been mistaken, because the submission did not allege perjury, conspiracy or wrongdoing. The other asserted improbabilities did not compel a reasonable doubt and the case was distinguishable from Pell v The Queen.

Jurisdiction
Australia
Judgment Date
13 November 2023
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Convictions From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['unreasonable Verdict' 'sexual Offences Involving a Child' 'credibility of Complainant' 'prosecution Witnesses Contrary to Crown Case' 'evidence Act 1995 (nsw), S 38' 'browne V Dunn' 'forensic Disadvantage From Delay']
['criminal Law' 'criminal Procedure' 'evidence' 'appeals'] ['unreasonable Verdict' 'sexual Offences Involving a Child' 'credibility of Complainant' 'prosecution Witnesses Contrary to Crown Case' 'evidence Act 1995 (nsw), S 38' 'browne V Dunn' 'forensic Disadvantage From Delay']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Convictions From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the verdicts of guilty on six sexual offences were unreasonable.' "Whether it was open to the jury to accept the complainant's evidence beyond reasonable doubt despite evidence from the applicant's mother and stepfather that the spare room was obstructed by boxes and bags." 'Whether the prosecutor was required to seek leave under s 38 of the Evidence Act 1995 (NSW) before submitting that Crown witnesses were mistaken.' "Whether other evidence about creaky doors, dogs, light sleepers, the applicant's father, and waking times created unavoidable reasonable doubt."]

Ratio Decidendi

The appeal was dismissed because, making an independent assessment of the whole of the evidence, it was open to the jury to accept the complainant's evidence beyond reasonable doubt and to reject, or regard as mistaken, the evidence of the applicant's mother and stepfather about boxes and bags obstructing the spare room. The prosecutor was not required in the circumstances to seek leave under s 38 of the Evidence Act 1995 (NSW) before submitting that those witnesses may have been mistaken, because the submission did not allege perjury, conspiracy or wrongdoing. The other asserted improbabilities did not compel a reasonable doubt and the case was distinguishable from Pell v The Queen.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']