SB v R [2017] NSWCCA 30 (8 March 2017)

Last Updated: 2 October 2018

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	SB v R
Medium Neutral Citation:	[2017] NSWCCA 30
Hearing Date(s):	8 March 2017
Decision Date:	8 March 2017
Before:	Basten JA, Button J, N Adams J
Decision:	(1) Grant the applicant leave to appeal against the convictions resulting from a jury verdict delivered on 22 May 2015. (2) Allow the appeal and set aside the convictions on each count and the aggregate sentence imposed on 4 August 2015. (3) Direct that there be a retrial at the discretion of the Director, having considered any further material relevant to that decision. (4) There be no publication of the name of, or any information identifying, the complainant in this matter, including the family name of the applicant.
Catchwords:	APPEAL – crime – practice and procedure – miscarriage of justice – unedited transcript of police interview with complainant mistakenly provided to jury – acceptance by Director of Public Prosecutions that the proviso did not apply – by consent appeal allowed, convictions quashed, new trial ordered APPEAL – crime – practice and procedure – procedural error involving mixed question of law and fact – leave to appeal under s 5(1)(b) Criminal Appeal Act 1912 (NSW) required – leave granted
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5, 6 Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Category:	Principal judgment
Parties:	SB (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Mr S Odgers SC (Applicant) Ms M Cinque SC (Respondent) Solicitors: S E O’Connor, Legal Aid NSW (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/192223
Publication Restriction:	There be no publication of the names of, or any information identifying, the complainant in this matter, including the family name of the applicant.
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	9 October 2015
Before:	Garling DCJ
File Number(s):	2013/192223

JUDGMENT

1. THE COURT: The applicant was arrested on 24 June 2013 in relation to a number of counts of aggravated indecent assault, sexual intercourse with a child between 10 and 14 years under circumstances of aggravation, sexual intercourse with a person under 10 years and an aggravated act of indecency with a child under 16 years.
2. On 18 May 2015 the applicant was tried on an indictment containing 10 separate counts, to each of which he entered a plea of not guilty. On 22 May 2015 a jury returned verdicts of guilty on all counts.
3. On 4 August 2015, the applicant was sentenced to a period of imprisonment comprised by a non-parole period of 7 years 6 months and a balance of term of 4 years 6 months, commencing from the date of the verdicts, when he was taken into custody, namely 22 May 2015.
4. On 10 August 2016 he filed a notice of appeal or application for leave to appeal against conviction. On 13 January 2017, an amended notice of grounds of appeal was filed. It is not necessary to refer to the first two (original) grounds; the third ground stated that a miscarriage of justice had occurred as a result of an unedited version of a transcript of an interview between the complainant and police conducted on 3 May 2013 being provided to the jury, in circumstances where it had been agreed prior to the trial that only a redacted version of that document would be provided to the jury.
5. Pursuant to a submission filed on 1 March 2017, senior counsel for the Director of Public Prosecutions accepted that the material supplied to the jury included an unedited version of the interview, which had been marked as exhibit MFI 6 at the trial and was subsequently tendered as part of Exhibit K.
6. In these circumstances, the Director accepted that there had been a miscarriage of justice and that it would not be appropriate to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (namely that the Court considers that no substantial miscarriage of justice has actually occurred) in the circumstances of this case. The respondent therefore submitted that the appropriate orders, based on ground 3 having been made good, are:
   • (1) allow the appeal;
   • (2) quash the convictions and sentences;
   • (3) direct a new trial on all counts.
7. Given the concession as to the error at the trial, the applicant accepts that there is no need for the court to consider grounds 1 and 2 and that the orders proposed by the respondent should be made.
8. On the basis that the error involves a procedural mistake in the course of the trial, which, it is accepted, resulted in a miscarriage, ground 3 does not involve a question of law alone and the applicant therefore requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act. That leave is a precondition to allowing the appeal and should be granted.
9. For the purpose of considering the propriety of making the orders proposed, the court has had access to the submissions prepared by senior counsel for the applicant in support of such orders. Those submissions were provided following the disclosure by the Director of the provision to the jury of the material which was not in evidence, but prior to the respondent’s submissions acknowledging that the proviso should not apply. As senior counsel submitted, there would have been a difficulty in applying the proviso in circumstances in which the material involved allegations of physical abuse and other sexual abuse which was not the subject of any charge, such material being supplied by mistake and without either party realising the mistake. It followed that no steps had been taken to reduce the potential prejudice to the applicant, by way of directions to ignore the material, or otherwise.
10. The court has also been supplied with the unedited material, identifying the sections which should have been removed.
11. Having considered this material and its context within the other evidence in the trial, the court is satisfied that the orders proposed by the parties should be made.
12. Accordingly, the court orders:
    • (1) Grant the applicant leave to appeal against the convictions resulting from a jury verdict delivered on 22 May 2015.
    • (2) Allow the appeal and set aside the convictions on each count and the aggregate sentence imposed on 4 August 2015.
    • (3) Direct that there be a retrial at the discretion of the Director, having considered any further material relevant to that decision.
13. Since delivering these reasons, it has been drawn to the court’s attention that a non-publication order was in place at trial to protect the identity of the complainants. That required that the family name of the applicant not be published. It is necessary to avoid causing undue distress or embarrassment to a witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), under s 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the court order that:

There be no publication of the names of, or any information identifying, the complainant in this matter, including the family name of the applicant.

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