Boulattouf v R - [2007] NSWCCA 102

Appeal Outcome: Special leave application refused by the High Court - 31 August 2007

New South Wales

Court of Criminal Appeal

CITATION: Anthony Boulattouf v Regina [2007] NSWCCA 102
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 March 2007

JUDGMENT DATE:
12 April 2007

JUDGMENT OF: Simpson J at 1; Barr J at 1; Howie J at 1

DECISION: The appeal against the conviction is dismissed. Leave is granted to appeal against the sentence but the appeal is dismissed.

CATCHWORDS: Criminal law - whether a direction inviting the jury to consider whether the complainant had a motive to lie and whether she and her mother had a motive to conspire to lie was capable of correction - whether direction effectively corrected. Criminal law - whether verdicts inconsistent

LEGISLATION CITED: Evidence (Children) Act 1997

CASES CITED: McKinney v The Queen (1991) 171 CLR 468
R v Lansdell, Court of Criminal Appeal, New South Wales, 22 May 1995
R v Jovanovic (1997) 42 NSWLR 520
R v Fuge (2001) 123 A Crim R 310
R v Smith [2000] NSWCCA 468
R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991, unreported
Gilbert v The Queen [2007] HCA 15
Palmer v The Queen (1998) 193 CLR 1

PARTIES: Anthony Boulattouf, Regina

FILE NUMBER(S): CCA 2007/0008

COUNSEL: R Herps
P Hamill SC

SOLICITORS: S Kavanagh
Nyman Gibson Stewart

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1128

LOWER COURT JUDICIAL OFFICER: Geraghty DCJ

2007/0008

SIMPSON J
BARR J
HOWIE J
12 APRIL 2007

ANTHONY BOULATTOUF v REGINA

JUDGMENT

1 THE COURT: On 9 December 2005, following a trial that commenced on 5 December, the appellant was convicted by a jury of a single count of aggravated indecent assault. On 3 February 2006 Geraghty DCJ sentenced him to imprisonment with a non-parole period of 21 months, commencing on the day it was imposed, and a balance of term of seven months.

2 The appellant now appeals against the conviction and seeks leave to appeal against the sentence.

3 The count on which the appellant was convicted was the second of three on the indictment. The first, to which it was an alternative, was of sexual intercourse with a child under ten years. The jury returned a verdict of not guilty on this count and thus proceeded to the second, alternative, count. Both of these counts alleged offences said to have been committed on 15 April 2004. The third count was of aggravated indecent assault, alleged to have been committed between 14 February 2004 and 15 April 2004. At the direction of the trial judge, the jury returned a verdict of not guilty to this count.

4 What follows is an account of the facts and circumstances alleged by the Crown. It should not be taken to represent any concluded findings of fact.

5 The appellant was the proprietor of a domestic renovation business. In April 2004, with…

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 Boulattouf v R

Details

AGLC: Boulattouf v R [2007] NSWCCA 102
Case: [2007] NSWCCA 102
Decision Date: 12 April 2007

CaseChat Overview and Summary

In the Supreme Court of Victoria, the appellant, Boulattouf, was convicted of various offences including aggravated sexual penetration, aggravated sexual assault, and indecent assault. The convictions stemmed from an incident involving an eight-year-old girl and her mother. The jury was directed to consider whether the complainant and her mother had motives to lie and conspire to lie, which was the basis of the appeal. The central issue before the court was whether the trial judge's direction to the jury was capable of correction and if it effectively corrected any errors made during the trial. The court also had to consider whether the verdicts were inconsistent and if they could be supported by the evidence presented.

The court examined the nature of the direction given to the jury and whether it invited them to consider improper motives. It assessed whether the direction was sufficiently clear and whether it could have led to a miscarriage of justice. The court held that the direction was capable of correction and that it effectively addressed the concerns raised by the appellant. The court found that the trial judge had properly instructed the jury on the principles of motive and conspiracy to lie, ensuring that the jury was not misled by irrelevant considerations. The court concluded that the verdicts were consistent and adequately supported by the evidence.

The court dismissed the appeal, upholding the appellant's convictions. The trial judge's direction to the jury was deemed appropriate and sufficient to correct any potential errors. The court found no basis to interfere with the jury's verdicts, which were consistent and supported by the evidence. The final orders of the court were to maintain the convictions as determined by the jury, affirming the findings of the trial judge.

Orders