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GAR v R (No 1)

GAR v R (No 1)

Case [2010] NSWCCA 163 5 August 2010

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New South Wales
Court of Criminal Appeal

CITATION: GAR v R (No 1) [2010] NSWCCA 163

HEARING DATE(S): 28/4/10, 29/4/10, 30/4/10

JUDGMENT DATE:
5 August 2010

JUDGMENT OF: Tobias JA; Johnson J; Rothman J

DECISION: 1. Grant leave to appeal.
2. The appellant’s appeal against his conviction is dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – conviction – evidence – fresh evidence – cogency – whether fresh evidence was credible, capable of belief or plausible – whether fresh evidence was so cogent that Court would be satisfied of appellant’s innocence or would entertain reasonable doubt as to guilt – whether fresh evidence likely to have caused jury to entertain reasonable doubt as to appellant’s guilt or given rise to significant possibility that jury would have acquitted

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001
Evidence Act 1995

CASES CITED: The Application of GAR, NSWSC, 12 February 2009
GAR v Regina [2003] NSWCCA 224
JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Abou Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
Rasic v R [2009] NSWCCA 202

PARTIES: GAR
Regina

FILE NUMBER(S): CCA 2002/13729

COUNSEL: A: D Dalton SC; A Goodridge
R:D Arnott SC; N Noman

SOLICITORS: A: J N Legal
R: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/21/1183

LOWER COURT JUDICIAL OFFICER: Naughton QC DCJ

LOWER COURT DATE OF DECISION: 31/10/2002

CCA 2002/13729

TOBIAS JA
JOHNSON J
ROTHMAN J
5 August 2010

GAR v R (No 1)

Judgment

1 THE COURT: The present appeal was heard concurrently by the Court between 28 and 30 April 2010 with two other appeals against conviction involving the same appellant. Judgment in the other appeals is being handed down at the same time as judgment is being given in the present appeal.

2 The present appeal arises out of the conviction of the appellant for the sexual assault of his ex-wife in 2002. The appellant’s ex-wife and their daughter gave oral evidence for the Crown at the sexual assault trial. The operation of s 578A Crimes Act 1900 involves prohibition on publication of anything identifying or likely to lead to the identification of the complainant in sexual assault proceedings. Accordingly, in accordance with usual practice, the appellant is referred to by the initials GAR and his ex-wife, the complainant, as ER and their daughter as E. It is also appropriate to refer to the appellant’s sister as JC and a friend of the appellant’s former wife as RM.

3 On 21 October 2002 the appellant was indicted before his Honour Judge Naughton QC at Penrith District Court. During the course of the trial the indictment was amended to charge the appellant as follows:

1. That on 13 January 2002 at Doonside, in the State of New South Wales, he did without consent, detain ER with the intention…

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 GAR v R (No 1)

Details

AGLC: GAR v R (No 1) [2010] NSWCCA 163
Case: [2010] NSWCCA 163
Decision Date: 5 August 2010

CaseChat Overview and Summary

The case of GAR v R (No 1) involved an appeal by the defendant against a conviction for criminal offences. The dispute centred on the admissibility of fresh evidence presented after the original trial. The matter was heard in the High Court of Australia. The defendant argued that the fresh evidence was credible, capable of belief, and plausible, and that it was so cogent that it would have caused the jury to entertain a reasonable doubt as to the defendant’s guilt or would have led to a significant possibility that the jury would have acquitted.

The primary legal issues before the court were whether the fresh evidence met the threshold of credibility and cogency required for it to be considered by the Court. The court had to determine if the fresh evidence was such that it could have caused the jury to entertain a reasonable doubt about the defendant’s guilt or if it presented a significant possibility that the jury would have acquitted the defendant. The court was required to weigh the cogency and plausibility of the fresh evidence against the original findings of the jury.

The court considered the nature of the fresh evidence and its potential impact on the original verdict. It assessed whether the evidence was credible and capable of belief, and whether it was so compelling that it would have led the jury to entertain a reasonable doubt about the defendant’s guilt or to acquit the defendant. Ultimately, the court found that the fresh evidence did not meet the required standard of cogency and credibility. The evidence was not so compelling that it would have caused the jury to entertain a reasonable doubt about the defendant’s guilt or to acquit the defendant. The court dismissed the appeal, upholding the original conviction.

The final orders of the court were that the appeal was dismissed, and the conviction remained in place. The fresh evidence presented was deemed insufficient to warrant a reconsideration of the original verdict.

Orders