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Arizabaleta v R

Arizabaleta v R

Case [2023] NSWCCA 217 1 September 2023

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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…

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 Arizabaleta v R

Details

AGLC: Arizabaleta v R [2023] NSWCCA 217
Case: [2023] NSWCCA 217
Decision Date: 01 September 2023

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