Aroub v The Queen - [2018] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Aroub v The Queen
Citation:	[2018] ACTCA 13
Hearing Dates:	5 April 2018 and 23 April 2018
DecisionDate:	8 May 2018
Before:	Burns J
Decision:	See [26]
Catchwords:	APPEAL - Application for leave to appeal out of time – convicted by a jury – sentenced to period of imprisonment – draft notice of appeal – amended draft notice of appeal – appeal against conviction and sentence – consideration of merits of proposed appeal – ground relating to failure to call witness – ground relating to failure to disclose material – grounds relating to whether potential for prejudice regarding explanations of DNA evidence – whether unfairness to accused in representing himself at trial – identity not in issue
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 5402, 5506 Evidence Act 2011 (ACT) ss 135, 137 Human Rights Act 2004 (ACT) s 22
Cases Cited:	SV v The Queen [2017] ACTCA 41
Parties:	Mr Ozogow Aroub (Applicant) The Queen (Respondent)
Representation:	Counsel Mr D Adut (Applicant) Ms K McCann (Respondent)
Solicitors AC Law Group (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 48 of 2017
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 14 July 2017 Case Title: R v Aroub Citation: [2017] ACTSC 187

BURNS J:

The applicant, Ozogow Aroub, was convicted by a jury on 15 March 2017 of one count of sexual intercourse without consent and one count of committing an act of indecency without consent. These offences occurred on 19 April 2015. On 14 July 2017 the applicant was sentenced by the Chief Justice to an effective term of imprisonment of two years, to be served by way of full-time imprisonment for a period of six months, with the balance suspended with a Good Behaviour Order for a period of 18 months. The effect of these orders was that the applicant would have been entitled to be released from custody on 12 January 2018. The applicant was not represented by a legal practitioner in the course of his trial, although he had been so represented until shortly before the trial commenced.

On the 29 September 2017 the applicant lodged an application pursuant to r 5506 of the Court Procedures Rules 2006 (ACT)(the CPRs) applying to the Registrar of the Court for leave to appeal out of time against these convictions and sentences. The application was accompanied by a document which purported to be a notice of appeal pursuant to r 5402 of the CPRs, rather than a draft notice of appeal as required by r 5506. I will nevertheless refer to this as the draft notice of appeal. The application was supported by an undated affidavit of the applicant. All of these documents were prepared by the applicant personally. The proposed grounds of the appeal, as set out in the draft notice of appeal, were expressed as “errors in introduction of evidence, interviewed by police while under the…

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 Aroub v The Queen

Details

AGLC: Aroub v The Queen [2018] ACTCA 13
Case: [2018] ACTCA 13
Decision Date: 8 May 2018

CaseChat Overview and Summary

The applicant, Aroub, sought leave to appeal out of time against a conviction and sentence imposed by a jury. The appeal concerned grounds relating to the alleged failure to call a witness, the failure to disclose material, and the potential for prejudice arising from explanations of DNA evidence. A further ground argued that the applicant suffered unfairness by representing himself at trial, with identity not being in issue.

The primary legal issue before the court was whether the applicant had established sufficient grounds to warrant granting leave to appeal out of time. This required an assessment of the merits of the proposed grounds of appeal, particularly concerning the alleged failures in disclosure and witness calling, the handling of DNA evidence, and the fairness of the trial process given the applicant's self-representation.

The court considered the applicant's arguments regarding the alleged failures in disclosure and witness calling, as well as the potential prejudice arising from the explanation of DNA evidence. It also examined the applicant's claim of unfairness due to self-representation. The court's reasoning focused on whether these grounds, if established, would likely have led to a different outcome at trial or demonstrated a miscarriage of justice.

The court ultimately refused leave to appeal.

Orders

Orders of the court

See [26]

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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