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Aziz (a pseudonym) v The the Queen

Aziz (a pseudonym) v The the Queen

Case [2022] NSWCCA 76 13 April 2022

Criminal Liability

Appeal

Admissibility of Evidence

Expert Evidence

Criminal Law

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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

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.
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…

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 Aziz (a pseudonym) v The the Queen

Details

AGLC: Aziz (a pseudonym) v The the Queen [2022] NSWCCA 76
Case: [2022] NSWCCA 76
Decision Date: 13 April 2022

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