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Ganiji v R

Ganiji v R

Case [2019] NSWCCA 208 30 August 2019

Appeal

Jurisdiction

Unreasonable Verdict

Assessment of Evidence

Directions to Jury

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ganiji v R [2019] NSWCCA 208
Hearing dates: 3 July 2019
Decision date: 30 August 2019
Before: Basten JA at [1];
Button J at [54];
Lonergan J at [63]
Decision:
(1)   Grant the applicant an extension of time to permit the filing of a notice of appeal including the further ground up to and including 2 July 2019.
(2) Pursuant to r 4, Criminal Appeal Rules, refuse leave to rely upon the new ground.
(3)   Grant the applicant leave to appeal on the ground that the verdict was unreasonable.
(4)   Dismiss the appeal against the conviction on count 1.

Catchwords:
CRIMINAL LAW – appeal and new trial – conviction appeal – applicant convicted of non-consensual sexual intercourse but acquitted of indecent assault – whether verdict unreasonable or insupportable having regard to evidence – principles applicable to unreasonable verdicts – assessment of factual circumstances – evidence of conduct and initial complaints significantly more substantial for offence resulting in conviction
CRIMINAL LAW – appeal and new trial – conviction appeal – direction as to need to consider counts separately – direction as to use of doubts as credibility of complainant on one charge in considering other charge – comment as to prosecution case if satisfied as to complainant’s credibility – no objection taken at trial – whether direction adequate – R v Markuleski considered
Legislation Cited:
Crimes Act 1900 (NSW), s 578A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), ss 294, 294AA
Criminal Appeal Rules (NSW), r 4
Cases Cited: AH v R [2019] NSWCCA 152
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Hogan (a pseudonym) v R [2019] NSWCCA 125
Jafary v R [2018] NSWCCA 243
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category: Principal judgment
Parties: Zejadin Ganiji (Appellant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Appellant)
Ms H Roberts (Respondent)
Solicitors:
Ross Hill & Associate, Solicitors (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/211300
Publication restriction: Publication of any material which leads or is likely to lead to the identification of the complainant in respect of a prescribed sexual offence is prohibited: Crimes Act 1900 (NSW), s 578A(2).
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 March 2018

Before:

Haesler SC DCJ

File Number(s):

2016/211300

Judgment

BASTEN JA: On 29 August 2017 the applicant, Zejadin Ganiji, entered pleas of not guilty in relation to two offences involving assaults on a young woman who, for the purposes of the proceedings, was given a pseudonym; [1] for present purposes it will suffice to refer to her as the complainant. The counts were as follows:

Count 1: On 7 February 2016 at Bulli in the State of NSW, [the applicant] did…

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 Ganiji v R

Details

AGLC: Ganiji v R [2019] NSWCCA 208
Case: [2019] NSWCCA 208
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the Supreme Court, Ganiji appealed his conviction for non-consensual sexual intercourse, while his acquittal for indecent assault stood unchallenged. The case involved allegations of sexual misconduct by the respondent against the complainant. Ganiji’s appeal centred on the contention that his conviction was unreasonable or not supported by the evidence, and that the trial judge’s directions to the jury were inadequate.

The central legal issues revolved around the adequacy of the jury’s consideration of the evidence and the appropriateness of the trial judge’s directions. The court needed to determine whether the conviction was unreasonable or unsupported by the evidence, and whether the trial judge’s directions on assessing the complainant’s credibility and considering the charges separately were sufficient.

The court examined the evidence, noting that the proof of the charge leading to conviction was significantly more substantial than that for the acquitted charge. It assessed whether the jury could have reasonably reached the verdict of guilt on the non-consensual sexual intercourse charge given the evidence. The court also scrutinised the trial judge’s directions to the jury, considering whether they were adequate for the jury to properly assess the case. Although the prosecution did not object to the directions at trial, the court examined whether they were in line with the principles set out in R v Markuleski. Ultimately, the court concluded that the jury’s verdict was not unreasonable, and the trial judge’s directions were sufficient.

Ganiji’s appeal was dismissed. The conviction for non-consensual sexual intercourse was upheld, and the acquittal for indecent assault remained unchallenged.

Orders