Arizabaleta v R

Case [2023] NSWCCA 217


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Arizabaleta v R [2023] NSWCCA 217
Hearing dates: 1 May 2023
Decision date: 01 September 2023
Before: Leeming JA at [1];
Rothman J at [166];
McNaughton J at [219]
Decision:

1. Grant leave to appeal.

2. Appeal dismissed.

Catchwords:

CRIME – appeal against conviction – judge-alone trial – applicant charged with three counts of sexual intercourse without consent – applicant pleaded guilty to digital penetration, and not guilty to counts of penile vaginal penetration and cunnilingus – all offending alleged to take place upon same complainant on same occasion – applicant found guilty of second and third counts – whether primary judge’s findings of guilt unreasonable and cannot be supported by evidence – significance of inconsistencies in complaint evidence – significance of primary judge’s assessment of complainant’s testimony – significance of complainant’s language difficulties – significance of malleability of memory – consideration of appellate review on basis findings of guilt unreasonable – appeal dismissed by majority

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HA, 61I, 578A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Legislation Amendment (Child Sexual Abuse) Act2018 (NSW), Sch 4 [10]

Criminal Procedure Act 1986 (NSW), ss 132, 133, 293A, 294, 294B

Evidence Act 1995 (NSW)

Cases Cited:

AS v R [2022] NSWCCA 291

Dansie v The Queen [2022] HCA 25; 96 ALJR 728

De Silva v The Queen (2019) CLR 57; [2019] HCA 48

Fennell v The Queen [2019] HCA 37; 93 ALJR 1219

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Hossain v R [2023] NSWCCA 18

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Prouten v Chapman [2021] NSWCA 207

RA v R [2020] NSWCCA 356

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210

Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148

Category:Principal judgment
Parties: Alvaro Arizabaleta (Applicant)
Crown (Respondent)
Representation:

Counsel:
K Edwards (Applicant)
S Lind (Respondent)

Solicitors:
Hugo Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2020/00189230
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
15 December 2021
Before:
Noman…

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AGLC
Arizabaleta v R [2023] NSWCCA 217
Case
[2023] NSWCCA 217
Decision Date

CaseChat Overview and Summary

In the case of Arizabaleta v R, the applicant appealed against his conviction by a judge alone in the County Court. The applicant was charged with three counts of sexual intercourse without consent, related to a single complainant on a single occasion. He pleaded guilty to one count of digital penetration but denied the other two counts, which were penile vaginal penetration and cunnilingus. The primary judge found the applicant guilty on all counts, and the applicant sought to appeal on the basis that the findings of guilt were unreasonable and could not be supported by the evidence.

The court was required to consider the inconsistencies in the complainant's evidence, the primary judge's assessment of that evidence, and the impact of the complainant's language difficulties and memory issues on the reliability of her testimony. The court also needed to examine the significance of these factors in determining whether the primary judge's findings of guilt were unreasonable and whether they could be supported by the evidence. The appeal hinged on whether the appellate court could conclude that the findings of guilt were unreasonable based on the evidence presented.

The majority of the court found that the inconsistencies in the complainant's evidence did not undermine her overall credibility, and the primary judge's assessment of her testimony was reasonable. The court acknowledged the difficulties faced by the complainant in recounting the events due to language barriers and memory issues but found that these factors did not detract from the reliability of her testimony. The court concluded that the primary judge's findings of guilt were reasonable and could be supported by the evidence. Consequently, the appeal was dismissed by a majority of the 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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