Antouny v The Queen - [2020] NSWCCA 203

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:
ARS v R [2011] NSWCCA 266
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
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v S [2003] NSWCCA 122
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20

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:
P Lange (Applicant)
B Baker (Respondent)
Solicitors:
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

HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.
FAGAN J: I agree with Cavanagh J and with the orders he proposes.
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).
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.
The applicant appeals against his conviction on two grounds being:

“1. That His Honour erred in directing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antouny v The Queen

Details

AGLC: Antouny v The Queen [2020] NSWCCA 203
Case: [2020] NSWCCA 203
Decision Date: 12 August 2020

CaseChat Overview and Summary

The applicant, Antouny, appealed against his conviction for a crime. The case was heard in the Court of Criminal Appeal. The primary issue was whether the trial judge erred in directing the jury about the weighting of evidence concerning the applicant. Additionally, it was argued that the cross-examination of a witness was conducted contrary to section 44 of the Evidence Act 1995 (NSW), and whether this led to a miscarriage of justice.

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