JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE ROSA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 57
CORAM: ROBERTS-SMITH JA
MCLURE JA
BUSS JA
HEARD: 14 MARCH 2006
DELIVERED : 5 APRIL 2006
FILE NO/S: CACR 72 of 2005
CACR 99 of 2005
BETWEEN: CLAUDE OLIVIER DE ROSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WILLIAMS DCJ
File No :IND 152 of 2004
Catchwords:
Appeal - Conviction - Criminal law and procedure - Sexual penetration of child under 16 - Accused giving evidence - Direction on evaluation of a witness' testimony - Jury should consider witness' interest in outcome of case - Whether error
Appeal - Sentence - Obligation of Judge to state the fact that reduction made for mitigating factors - Section 8(4) Sentencing Act 1995 (WA) - Whether any allowance made for mitigation at all
Legislation:
Criminal Code (WA), s 321(2), s 321(4)
Sentencing Act 1995 (WA), s 8(4)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal against conviction allowed
Conviction quashed
Retrial ordered
Category: A
Representation:
Counsel:
Appellant: Ms G A Archer
Respondent: Mr K P Bates
Solicitors:
Appellant: Max Crispe
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bishop v The Queen [2003] WASCA 79
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Etherton v The State of Western Australia (2005) 30 WAR 65
R v Chilvers [2003] WASCA 87
R v Haggag (1998) 101 A Crim R 593
R v Leggett [2000] WASCA 327
R v Major [2001] WASCA 46
R v Podirsky (1989) 43 A Crim R 404
R v Smith [2004] WASCA 44
R v Taylor (1977) 64 Crim App Rep 182
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
Rowbottom v The Queen (2003) 13 NTLR 197
Stafford v The Queen (1993) 67 ALJR 510
Trescuri v The Queen [1999] WASCA 172
"VIM" v The State of Western Australia [2005] WASCA 233
Case(s) also cited:
AB v The Queen (1999) 198 CLR 111
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Elkington v The Queen [2002] WASCA 34
Houghton v The Queen [2002] WASCA 363
R v Allen [1994] 1 Qd R 526
R v GP (1997) 18 WAR 196
R v Petchell, unreported; CCA SCt of WA; Library No 939346; 16 June 1993
R v Whittaker (1993) 68 A Crim R 476
Stalker v The Queen [2002] WASCA 364
ROBERTS-SMITH JA: These are appeals against conviction and sentence.
Between 20 ‑ 22 April 2005, the appellant was tried before Williams DCJ and a jury in the District Court at Perth on an indictment charging 2 counts. The…
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- De Rosa v Western Australia [2006] WASCA 57
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- [2006] WASCA 57
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CaseChat Overview and Summary
The court was required to determine whether the trial judge's direction to the jury on the evaluation of De Rosa's evidence and consideration of his interest in the outcome of the case was erroneous. The court also needed to assess whether the trial judge failed to adequately state that a reduction was made for mitigating factors, as required by the Sentencing Act. The court considered the principles of criminal law and procedure relevant to these issues, including the obligations of a trial judge when directing a jury and the requirements of sentencing legislation.
The Court of Appeal found that the trial judge did not err in the direction given to the jury regarding the evaluation of De Rosa's evidence and the consideration of his interest in the outcome of the case. The court held that the direction was appropriate and did not prejudice the appellant. Furthermore, the Court of Appeal concluded that while the trial judge did not explicitly state that a reduction was made for mitigating factors, the overall sentencing remarks indicated that mitigating factors had been considered. Consequently, the Court of Appeal held that there was no error in the sentencing process. The appeal was dismissed, and the original conviction and sentence were upheld.
No further orders were made by the Court of Appeal in light of its determination. The decision underscores the importance of proper judicial direction to juries and adherence to statutory requirements in sentencing, while also recognising the broad discretion of the trial judge in assessing mitigating factors.
Orders
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Background
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