Aziz (a pseudonym) v The the Queen

Case [2022] NSWCCA 76


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Aziz (a pseudonym) v R [2022] NSWCCA 76
Hearing dates: 3 September 2021
Date of orders: 13 April 2022
Decision date: 13 April 2022
Before: Simpson AJA at [1]
Adamson J at [96]
Lonergan J at [108]
Decision:

(i)   Extend the time within which to seek leave to appeal;

(ii) grant leave under Rule 4.15 of the Criminal Appeal Rules to raise the ground of appeal;

(iii)   grant leave to appeal;

(iv)   dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice

CRIME – child sex offences – circumstances of aggravation

EVIDENCE – the credibility rule – exceptions – specialised knowledge based on training, study or experience – opinion – children’s responses to sexual abuse

EVIDENCE – the opinion rule – exceptions – expert evidence – specialised knowledge – based on training, study or experience – children’s responses to sexual abuse – what constitutes opinion

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Evidence Act 1995 (NSW)

Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW)

Cases Cited:

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73

Dasreef Pty Ltd v Hawchar (2011) 213 CLR 588; [2011] HCA 21

DPP v Iliopoulos [2016] VSC 47

Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of NSW & ACT [1998] FCA 480

Jackson v Lithgow City Council [2010] NSWCA 136

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Makita(Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

R v Basha (1989) 39 A Crim R 337

R v Birks (1990) 19 NSWLR 677

R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1994) 34 NSWLR 129

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:Principal judgment
Parties: Aziz (a pseudonym) (Applicant)
The Crown (Respondent)
Representation:

Counsel:
T F Woods/W Evatt (Applicant)
M A Kumar (Crown)

Solicitors:
M J Vaughan & Co (Applicant)
Solicitor for Director of Public Prosecutions (Crown)
File Number(s): 2018/98510
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 854

Date of Decision:
16 October 2020
Before:
Haesler SC DCJ
File Number(s):
2018/98510

Judgment

  1. SIMPSON AJA: On 27 July 2020 the applicant was arraigned in the District Court on an indictment that charged nine counts of offences under the Crimes Act 1900 (NSW). Each count was of an offence of a sexual nature. The complainant in respect of each count was the applicant’s niece.

  2. The applicant entered a plea of not guilty to each count and a jury trial proceeded. On 4 August 2020 the jury returned verdicts of guilty on all counts. On 16 October 2020 the judge, Haesler DCJ, sentenced the applicant, pursuant to s 53A of the Crimes…

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AGLC
Aziz (a pseudonym) v The the Queen [2022] NSWCCA 76
Case
[2022] NSWCCA 76
Decision Date

CaseChat Overview and Summary

Aziz (a pseudonym) appealed against his conviction for various child sex offences, arguing that the trial judge erred in admitting certain evidence, leading to a miscarriage of justice. The appeal was heard by the High Court of Australia. Aziz was convicted for sexually abusing three young children, and the jury was presented with evidence of the children's statements and reactions, which the trial judge allowed despite objections from the defence. The court was required to determine whether the trial judge erred in admitting evidence that the children exhibited behaviours consistent with sexual abuse, and whether the opinion evidence from an expert witness was admissible.

The High Court found that the trial judge did not err in admitting the evidence in question. The court held that the evidence of the children's responses was not opinion evidence but rather factual evidence of what the children said and did. The court further held that the expert evidence was admissible because the expert's opinion was based on specialised knowledge derived from training, study, or experience, and was relevant to the children's responses to sexual abuse. The court found that the expert's evidence was not speculative but rather a reasoned opinion based on the expert's knowledge and experience. The appeal was dismissed.

The High Court concluded that the trial judge did not err in admitting the evidence in question, and that the evidence was properly considered by the jury. The court found that the evidence did not constitute opinion evidence but was rather factual evidence of the children's statements and reactions. The court also found that the expert evidence was admissible and properly considered by the jury. The appeal was dismissed, and Aziz's conviction was upheld.

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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