Blair v The The Queen

Case [2022] NSWCCA 176


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…

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Blair v The The Queen [2022] NSWCCA 176
Case
[2022] NSWCCA 176
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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