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GAR v R (No 3)

GAR v R (No 3)

Case [2010] NSWCCA 165 5 August 2010

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: GAR v R (No 3) [2010] NSWCCA 165

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. Leave to appeal granted.
2. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – necessity for warnings by a trial judge under s 165 of the Evidence Act 1995 – requirement for application to trial judge – unnecessary to warn as to bias of a child – allegation of unreasonable verdict – analysis of evidence – role of fresh evidence – appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
GAR v R (No 1) [2010] NSWCCA 163
GAR v R (No 2) [2010] NSWCCA 164
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
R v Clout (1995) 41 NSWLR 312
R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; (2001) 124 A Crim R 371
Rasic v R [2009] NSWCCA 202

PARTIES: GAR
Regina

FILE NUMBER(S): CCA 2003/2610

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 02/11/1165

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 11/9/03

2003/2610

TOBIAS JA
JOHNSON J
ROTHMAN J
5 AUGUST 2010

GAR v R (No 3)

Judgment

1 THE COURT: The present appeal was one of a trilogy of appeals heard concurrently by the Court between 28 and 30 April 2010, each appeal seeking to overturn a conviction of the same appellant. Judgment in the other appeals is being handed down at the same time as this judgment, and this judgment ought to be read in conjunction with them. Particularly, the issue of fresh evidence that was before the Court in this matter is dealt with in detail in GAR v R (No 1) [2010] NSWCCA 163.

2 The present appeal arises out of the conviction of the appellant for armed robbery with wounding, following trial in the District Court in 2003. The robbery with wounding occurred at the Criterion Hotel (“the Hotel”) in Sydney in the early morning of 15 May 2000.

Use of initials in judgment

3 The issues in this judgment include an issue of fresh evidence that is dealt with fully in the judgment of the Court in GAR v R (No 1), supra. That appeal arose out of the conviction of the appellant for sexual assault on his former wife. The operation of s 578A of the 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 in that…

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 3)

Details

AGLC: GAR v R (No 3) [2010] NSWCCA 165
Case: [2010] NSWCCA 165
Decision Date: 5 August 2010

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the respondent, the Crown, concerning allegations of criminal activity involving the appellant, GAR. The trial concluded with a guilty verdict on several counts, which the appellant now sought to challenge on appeal. The appeal was heard by the Full Court of the Federal Court of Australia.

The legal issues that the court was required to determine involved the necessity for warnings by the trial judge under section 165 of the Evidence Act 1995. Specifically, the appeal hinged on whether the trial judge should have warned the jury about the potential bias of a child witness, as well as the appellant's contention that the jury had reached an unreasonable verdict. Additionally, the court had to consider the impact of fresh evidence presented during the appeal and assess whether it could have influenced the jury's decision.

In examining these issues, the court found that the trial judge was not required to warn the jury about potential bias in a child witness, as the statutory provisions did not mandate such warnings. The court held that the trial judge had correctly assessed the evidence presented and had not erred in their directions to the jury. The court also determined that the jury's verdict, while not unanimous, was not unreasonable given the evidence. Furthermore, the fresh evidence presented did not undermine the verdict to the extent that it would necessitate a new trial. Therefore, the appeal was dismissed, upholding the conviction and the trial judge's decisions.

Orders