SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Cruz v The Queen; R v Cruz
Citation:
[2017] ACTCA 48
Hearing Date:
4 May 2017
DecisionDate:
23 October 2017
Before:
Mossop, Bromwich JJ and Robinson AJ
Decision:
1. The appeal against conviction be dismissed.
2. The Crown appeal against sentence be dismissed.
Catchwords:
APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the evidence – whether error in pre-trial decision not to exclude hearsay evidence under s 137 of the Evidence Act 2011 (ACT)
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – whether sentence manifestly inadequate
I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Mossop
Associate:
Date: 23 October 2017
BROMWICH J:
This is a conviction appeal by Juan Carlos Cruz from his conviction, following trial by jury, on charges of engaging in sexual intercourse (cunnilingus) with, and committing an act of indecency (ejaculation) in the presence of, a female child who was at the time two years and 10 months old. It is also a Crown appeal against the sentences imposed.
It…
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 Cruz v The Queen
Sign in free to access the full text
Details
AGLC
Cruz v The Queen [2017] ACTCA 48
Case
[2017] ACTCA 48
Decision Date
CaseChat Overview and Summary
The appeal concerned a conviction and sentence imposed on the applicant, Cruz, in the Supreme Court of the Australian Capital Territory. The applicant appealed against his conviction, arguing that the verdict was unreasonable or could not be supported by the evidence. The Crown also appealed against the sentence imposed, contending it was manifestly inadequate.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the jury's verdict of guilty was unsafe or unsatisfactory, having regard to the evidence presented at trial. Secondly, whether the sentence imposed by the trial judge was so lenient as to be demonstrably unjust or outside the bounds of a reasonable exercise of sentencing discretion. A related issue was whether a pre-trial decision to admit certain hearsay evidence, pursuant to section 137 of the *Evidence Act 2011* (ACT), constituted an error that might have impacted the conviction.
The Court of Appeal considered the evidence presented at trial, including the contested hearsay evidence, and applied the principles governing appeals against conviction based on the unreasonableness of the verdict. It also considered the principles applicable to Crown appeals against sentence, which require a high threshold to be met before an appellate court will interfere with a sentence imposed by a trial judge. The Court found no basis to conclude that the jury's verdict was unsafe or that the sentence imposed was manifestly inadequate.
Consequently, the Court of Appeal ordered that the applicant's appeal against conviction be dismissed and that the Crown's appeal against sentence also be dismissed.
Orders
Orders of the court
1. The appeal against conviction be dismissed.
2. The Crown appeal against sentence be dismissed.