Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Antouny v R [2020] NSWCCA 203 Hearing dates: 24 June 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Before: Hoeben CJ at CL at [1]
Fagan J at [2]
Cavanagh J at [3]Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIME — appeals — appeal against conviction — whether trial judge erred in directing jury in relation to weighting of evidence of applicant — whether cross-examination of witness was conducted contrary to s 44 of the Evidence Act 1995 (NSW) — where conceded that one part of cross-examination infringed s 44 — whether miscarriage of justice occasioned
Legislation Cited: Crimes Act 1900 (NSW), s 66A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 44
Cases Cited: ASIC v Rich [2006] NSWSC 643; 201 FLR 207
Azzopardiv R (2001) 205 CLR 50; [2001] HCA 25
Burke (a pseudonym) v R (2013) 40 VR 161; [2013] VSCA 351
Mule v The Queen [2005] HCA 49; 221 ALR 85
Texts Cited: Michael McHugh, ‘Cross-Examination on Documents’ (1985) 1 Aust Bar Rev 51
Category: Principal judgment Parties: Elie Antouny (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
P Lange (Applicant)
B Baker (Respondent)
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2015/197690 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900, publication of the victim’s name or any identifying or potentially identifying information is prohibited. Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 28 July 2016
- Before:
- Farmer SC DCJ (Trial)
- File Number(s):
- 2015/197690
Judgment
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HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.
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FAGAN J: I agree with Cavanagh J and with the orders he proposes.
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CAVANAGH J: The applicant, Elie Antouny, seeks leave to appeal against his conviction on three counts of sexual intercourse with a person under the age of 10 contrary to s 66A of the Crimes Act 1900 (NSW).
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On 28 July 2016, the applicant was found guilty on each count by a jury of 12 sitting in the District Court with his Honour Judge Farmer SC. Unfortunately, his Honour died before sentencing the applicant. The applicant was sentenced by her Honour Judge Culver on 28 March 2017 to an aggregate sentence of imprisonment for 8 years with a non-parole period of 4 years. The sentence dates from 3 February 2017 and the non-parole period is due to expire on 2 February 2021.
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The applicant appeals against his conviction on two grounds being:
“1. That His Honour erred in directing…
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- AGLC
- Antouny v The Queen [2020] NSWCCA 203
- Case
- [2020] NSWCCA 203
- Decision Date
CaseChat Overview and Summary
The court examined the trial judge's direction to the jury, determining whether it was appropriate and whether it affected the fairness of the trial. It was acknowledged that part of the cross-examination did indeed contravene section 44 of the Evidence Act, but the court considered whether this breach was significant enough to warrant a new trial. The court assessed the overall impact of the improper cross-examination on the evidence presented and the jury's ability to make a fair decision.
Ultimately, the court found that the trial judge's direction to the jury was not erroneous and that the improper cross-examination did not result in a miscarriage of justice. The court concluded that the evidence presented was sufficient for the jury to reach a verdict without undue influence from the flawed cross-examination. The appeal was dismissed, and the conviction remained intact.
The court ordered that the appeal be dismissed and that the conviction and sentence remain as originally determined by the trial court.
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
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