Doe v R

Case [2008] NSWCCA 203 2 September 2008

No judgment structure available for this case.

Type to search within this case.

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…

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 Doe v R

Details

AGLC: Doe v R [2008] NSWCCA 203
Case: [2008] NSWCCA 203
Decision Date: 2 September 2008

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