Doe v R

Case [2008] NSWCCA 203


New South Wales
Court of Criminal Appeal

CITATION: DOE v R [2008] NSWCCA 203
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 16 June 2008
 
JUDGMENT DATE: 

2 September 2008
JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Latham J at 3
DECISION: Appeal dismissed
CATCHWORDS: Conviction appeal - sexual assault offences - circumstantial case as to identity of offender - alleged admission by accused to acquaintance - acceptance beyond reasonable doubt of that witness essential to proof of guilt - whether comment suggesting that the witness had "no axe to grind" capable of being understood by the jury as "Why would he lie?" - whether summing up compounded alleged error.
LEGISLATION CITED: Crimes Act 1900
CASES CITED: F (1995) 83 A Crim R 502
R v Uhrig CCA 24 October 1996
South v R [2007] NSWCCA 117
R v Davies NSWCCA 8/12/94
E (1996) 39 NSWLR 450
R v Uhrig NSWCCA 24/10/96
R v Graham NSWCCA 2/9/97
Guirguis NSWCCA 29/11/96
Jovanovic (1997) 98 A Crim R 1
R v AH (1997) 98 A Crim R 71
Palmer v The Queen (1998) 193 CLR 1
Robinson v The Queen (1991) 180 CLR 531
R v Smith [2000] NSWCCA 468
R v Fuge (2001) 123 A Crim R 310
R v Ray (2003) 57 NSWLR 616
Wilson v R [2006] NSWCCA 217
Boulattouf v R [2007] NSWCCA 102
South v R [2007] NSWCCA 117
R v El-azzi [2004] NSWCCA 455
R v Keir [2004] NSWSC 964
R v Walters [2002] NSWCCA 291
R v Brotherton (1993) 29 NSWLR 95
R v Coe [2002] NSWCCA 385 at [118]
R v Colby [1999] NSWCCA 261
R v Herring NSWCCA 24/11/98
BRS v R (1997) 191 CLR 275
BRS v R NSWCCA 5/3/96
R v Browne, Moorehouse & Blewitt NSWCCA 27/11/87
R v WRW [2001] NSWCCA 466 [67]
R v Brownlowe NSWCCA 30/3/94
R v Downey NSWCCA 16/12/92
PARTIES: Appellant - Aisson DOE
Respondent - Regina
FILE NUMBER(S): CCA 2007/00002921
COUNSEL: Appellant - SJ Odgers SC
Respondent - J Dwyer
SOLICITORS: Appellant - S O'Connor
Respondent - S Kavanagh (Solicitor for Public Prosecutions
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 06/41/0103
LOWER COURT JUDICIAL OFFICER: Conlon DCJ
LOWER COURT DATE OF DECISION: 13 April 2007




                          2007/00002921

                          SPIGELMAN CJ
                          HIDDEN J
                          LATHAM J

                          2 SEPTEMBER 2008
Aisson DOE v REGINA
Judgment

1 SPIGELMAN CJ : I agree with Latham J.

2 HIDDEN J : I agree with Latham J.

3 LATHAM J : Aisson Doe appeals against his conviction after trial on four (4) counts of Sexual Intercourse without Consent pursuant to s 61I of the Crimes Act 1900 and one count of Indecent Assault pursuant to s 61L of the Crimes Act. There is no appeal against sentence.

4 The narrow focus of the appeal renders it unnecessary to relate the circumstances of the offences in any detail. Of particular relevance to the appeal is the evidence…

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AGLC
Doe v R [2008] NSWCCA 203
Case
[2008] NSWCCA 203
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Doe, challenged his conviction for sexual assault offences. The appeal centred on the sufficiency of the evidence presented by the prosecution, particularly the identification of the appellant as the offender. The case was heard on appeal from the Supreme Court of Victoria. The prosecution's case was circumstantial, relying heavily on an alleged admission made by the appellant to an acquaintance. The appellant argued that the admission was not accepted beyond reasonable doubt and that the trial judge's comments during the summing up potentially misled the jury.

The legal issues before the court were whether the trial judge's comments could be interpreted as suggesting the witness had no reason to lie, thus undermining the requirement for the jury to be convinced of the appellant's guilt beyond reasonable doubt. The court also considered whether the summing up as a whole compounded any alleged error, potentially influencing the jury's decision. The appellant's counsel contended that the comments had the effect of reducing the standard of proof required for the witness's testimony.

The court held that the comments made by the trial judge, taken in context, did not suggest that the witness had no reason to lie. The judge had clearly instructed the jury on the necessity of being satisfied beyond reasonable doubt of the appellant's guilt. The comments, while perhaps not perfectly phrased, did not lead the jury to believe that a lesser standard of proof was acceptable. The court found that the summing up as a whole did not compound any error, as the judge had correctly outlined the principles of proof. Consequently, the appeal was dismissed, and the conviction upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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