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Blair v The The Queen

Blair v The The Queen

Case [2022] NSWCCA 176 18 August 2022

Appeal

Admissibility of Evidence

Unreasonable Verdict

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Blair v R [2022] NSWCCA 176
Hearing dates: 25 July 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Before: Beech-Jones CJ at CL at [1]
Fagan J at [9]
Yehia J at [14]
Decision:
(1) Leave to appeal against conviction is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME — Appeal — Appeal against conviction — Whether the trial Judge was required to warn himself pursuant to ss 165(1)(a) and 165(1)(d) of the Evidence Act 1995 (NSW) — Whether the complainant might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings — No request by trial counsel that the trial Judge give himself the relevant warnings — No miscarriage of justice demonstrated — Unreasonable verdict — Whether it was open to the trial Judge to be satisfied beyond reasonable doubt of the elements of Count 2 — Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 97(1), 86(3) and 117
Criminal Appeal Act 1912 (NSW) s 6(1)
Evidence Act 1995 (NSW) ss 165(1)(a) and 165(1)(d)

Cases Cited:
Davies v Director of Public Prosecutions [1954] AC 378
Downey (1997) 97 A Crim R 41
Kanaan and Ors v Regina [2006] NSWCCA 109
Khan v R [2022] NSWCCA 157
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Peacock v The King [1999] HCA 66; (1911) 13 CLR 619
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baartman [2000] NSWCCA 298
R v Booth [1982] 2 NSWLR 847
R v Clarke [2001] NSWCCA 494
R v Kendrick [1997] 2 VR 699
R v McLachlan [1999] 2 VR 553
R v Ncanana 1948 (4) SA 399
R v Sneesby [1951] St R Qd 26
R v Taranto [1999] NSWCCA 396
R v TJF (2001) 120 A Crim R 209; [2001] NSWCCA 127
Regina v Stewart [2001] NSWCCA 260
Sita v R [2022] NSWCCA 90
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
SM v R [2022] NSWCCA 13
Ware (1994) 73 A Crim R 17

Texts Cited:
Australian Law Reform Commission, Report No 26: Evidence (Interim), (1985)
Australian Law Reform Commission, Report No 38: Evidence, (1987)

Category: Principal judgment
Parties: William Blair (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
G Newton (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2019/00177499
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Date of Decision:

9 June 2022

Before:

Buscombe DCJ

File Number(s):

2019/00177499

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a judge alone trial in the District Court, on 9 June 2020 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 Blair v The The Queen

Details

AGLC: Blair v The The Queen [2022] NSWCCA 176
Case: [2022] NSWCCA 176
Decision Date: 18 August 2022

CaseChat Overview and Summary

In Blair v The Queen, the appellant, Blair, appealed against his conviction for various criminal offences, including counts of sexual assault and false imprisonment. The appeal was heard by the New South Wales Court of Criminal Appeal, with the respondents being the Queen and the Director of Public Prosecutions. Blair's primary contention on appeal was that the trial judge did not properly warn himself about the reliability of the complainant's evidence, as required by sections 165(1)(a) and 165(1)(d) of the Evidence Act 1995 (NSW). Blair argued that the complainant might reasonably be supposed to have been criminally involved in the events leading to the prosecution, thus necessitating the warnings.

The court examined whether the trial judge should have independently considered the warnings without a request from the trial counsel. The court held that since no such request was made, it was not mandatory for the trial judge to warn himself. Furthermore, the court found that Blair failed to demonstrate a miscarriage of justice, as the unreliability of the complainant's evidence did not play a material role in the trial judge's reasoning. The court also reviewed whether it was open to the trial judge to be satisfied beyond reasonable doubt of the elements of Count 2, which pertained to the offence of false imprisonment. The court concluded that the trial judge's findings were sound and not unreasonable.

In conclusion, the appeal was dismissed. The court found that the trial judge did not err in his consideration of the warnings and that there was no miscarriage of justice. The trial judge's findings on the elements of Count 2 were upheld, and the conviction stood. The court emphasized that the trial judge's role in considering the warnings was not triggered by the lack of a request from trial counsel, and that the appellant failed to demonstrate any prejudicial impact from the alleged failure to warn.

Orders