Court of Criminal Appeal
New South Wales
Case Title: AM v R Medium Neutral Citation: [2011] NSWCCA 237 Hearing Date(s): 10 October 2011 Decision Date: 03 November 2011 Jurisdiction: Common Law - Criminal Before: McClellan CJ at CL at 1
Latham J at 2
Harrison J at 3Decision: Appeal dismissed
Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - Crimes Act 1900 ss 61I and 61L - whether miscarriage of justice - whether trial judge erred in directing jury on question of whether appellant was reckless as to complainant's consent to sexual intercourse - whether jury verdict was unreasonable, or cannot be supported, having regard to the evidence - Criminal Appeal Act 1912 s 6(1) - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912Cases Cited: Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
Kurdi v R [2011] NSWCCA 179
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Henning (NSWCCA 11 May 1990, unreported)
R v Kitchener (1993) 29 NSWLR 696
SKA v The Queen (2011) HCA 13Texts Cited: Category: Principal judgment Parties: AM (Appellant)
Crown (Respondent)Representation - Counsel: S Stanton (Appellant)
J Girdham (Respondent)- Solicitors: Cater and Blumer Solicitors
S Kavanagh (Solicitor for Public Prosecutions)File number(s): 2008/12780 Decision Under Appeal - Court / Tribunal: District Court - Before: Sweeney DCJ - Date of Decision: 27 July 2010 - Citation: - Court File Number(s) 2008/12780 Publication Restriction: Appellant to be referred to by pseudonym
JUDGMENT
McCLELLAN CJ at CL : The test to be applied with respect to a challenge to the reasonableness of the verdict of a jury or that the verdict cannot be supported having regard to the evidence is that formulated by the majority in SKA v The Queen (2011) HCA 13 at [21]. I have reviewed the whole of the evidence and I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty as charged. I agree with Harrison J's analysis of the relevant issues and with his Honour's reasons with respect to the other grounds of appeal. I agree with the orders proposed by Harrison J.
LATHAM J : I agree with Harrison J.
HARRISON J : The appellant was convicted on 19 October 2009 following a trial before Sweeney DCJ and a jury on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act1900 and one count of indecent assault contrary to s 61L of that Act. He was sentenced on 27 July 2010. No complaint is made about the sentence.
There were originally seven grounds of appeal but only the fourth, fifth and seventh grounds are now pressed. They are in these terms:
Ground 4 : The learned trial judge erred in directing the jury that there was evidence on which it could find that the accused was reckless as to having a belief that the complainant consented…
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- AGLC
- Am v The Queen [2011] NSWCCA 237
- Case
- [2011] NSWCCA 237
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had erred in the direction given to the jury, and if so, whether that error led to a miscarriage of justice. The court considered whether the jury's verdict was unreasonable or could not be supported, having regard to the evidence. The court also had to consider whether the trial judge's direction to the jury was in accordance with the statutory provisions and whether the appellant's rights to a fair trial were breached.
The court held that the trial judge's direction to the jury was correct, and that there was no error in the direction given. The court found that the jury's verdict was not unreasonable, or incapable of being supported, having regard to the evidence. The court concluded that the appellant's appeal against conviction should be dismissed, and that there had been no miscarriage of justice.
The final orders of the court were that the appeal against conviction was dismissed, and that the conviction and sentence of the appellant stood affirmed. The court held that the trial judge's direction to the jury was correct, and that the jury's verdict was not unreasonable or incapable of being supported, having regard to the evidence. The appellant's rights to a fair trial were not breached, and there had been no miscarriage of justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ, LATHAM J, HARRISON J
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