APPEAL – Appeal against conviction – Verdict by judge alone – whether verdicts are unreasonable – where evidence adduced at trial supports findings of guilt – whether the trial judge failed to apply the Liberato direction – whether the trial judge failed to apply the Markuleski direction – whether trial judge failed to fulfill minimum requirement to expose reasoning process – where credibility of complainant is contested – whether the proviso is to be applied
Court File Numbers: SCC 117 of 2020; SCC 118 of 2020
McCallum CJ:
John Garay was tried by judge alone on an indictment containing 18 counts of sexual offences alleged to…
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.
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Details
AGLC
Garay v the Queen (No 3) [2023] ACTCA 2
Case
[2023] ACTCA 2
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against conviction by the appellant, Garay, following a trial by judge alone. The appeal was heard by McCallum CJ, Elkaim and Collier JJ in the Court of Criminal Appeal of New South Wales. The central dispute revolved around the reasonableness of the verdicts of guilt returned by the trial judge, with the appellant contending that the evidence adduced did not sufficiently support these findings.
The Court was required to determine several key legal issues. These included whether the verdicts of guilt were unreasonable, whether the trial judge had failed to apply the *Liberato* direction concerning the need for corroboration in certain circumstances, and whether the *Markuleski* direction, relating to the assessment of evidence where an accused relies on a defence that is not directly contradicted, had been properly applied. Furthermore, the Court considered whether the trial judge had fulfilled the minimum requirement to expose their reasoning process, particularly in light of the contested credibility of the complainant. The applicability of the proviso, allowing an appeal to be dismissed despite a legal error if no substantial miscarriage of justice has occurred, was also a consideration.
The Court of Criminal Appeal dismissed the appeal. Their Honours found that the evidence adduced at trial did support the findings of guilt made by the trial judge. The Court concluded that the trial judge had adequately applied the relevant directions, including those concerning the *Liberato* and *Markuleski* principles, and had sufficiently articulated their reasoning process. Consequently, the Court determined that no substantial miscarriage of justice had occurred, and therefore, the proviso was applied to dismiss the appeal.