Giallombardo, Peter v The Queen - [2014] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GIALLOMBARDO, Peter v R [2014] NSWCCA 25
Hearing dates: 28 November 2013
Decision date: 12 March 2014
Before: Hoeben CJ at CL at [1];
Blanch J at [2];
Hall J at [3]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 - one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 - convicted of four counts of aggravated indecent assault - alleged that the jury verdicts are unreasonable and could not be supported by the evidence - all relevant matters were left open to the jury - upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged - alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant - failure by trial counsel to seek directions - application of Rule 4 of the Criminal Appeal Rules - trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant - jury accepted the complainant as a truthful and reliable witness - benefit of the jury seeing the complainant give evidence - no miscarriage of justice arising from the absence of good character evidence and directions on good character - failure by trial counsel to seek directions on good character - application of Rule 4 of the Criminal Appeal Rules - proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules , r 4
Evidence Act 1995
Police Act 1990
Cases Cited: Attwood v The Queen (1960) 102 CLR 353
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v D (1996) 86 A Crim R 41
R v Murray (1987) 11 NSWLR 12
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Ward v The Queen [2013] NSWCCA 46
Category: Principal judgment
Parties: Peter Giallombardo (Appellant)
Regina (Respondent)
Representation: Counsel:
T Game SC; D Barrow (Appellant)
H Wilson SC (Respondent)
Solicitors:
Giddy & Crittenden (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/238119
Decision under appeal

Date of Decision:

2012-04-24 00:00:00

Before:

Bennett DCJ

File Number(s):

2010/238119

Judgment

HOEBEN CJ at CL: I agree with Hall J.

BLANCH J: I agree with Hall J.

HALL J: Peter Giallombardo, to whom I shall refer as "the Appellant", stood for trial commencing on 6 February 2012 in the District Court of NSW before his Honour Judge Bennett and a jury of twelve.

The Appellant was arraigned upon indictment in respect of the…

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 Giallombardo, Peter v The Queen

Details

AGLC: Giallombardo, Peter v The Queen [2014] NSWCCA 25
Case: [2014] NSWCCA 25
Decision Date: 12 March 2014

CaseChat Overview and Summary

Peter Giallombardo appealed against his conviction for three counts of aggravated indecent assault under section 61M(1) of the Crimes Act 1900 and one count of aggravated sexual assault under section 61J(1) of the Crimes Act 1900. The appellant was ultimately convicted of four counts of aggravated indecent assault. The appeal contended that the jury verdicts were unreasonable and not supported by the evidence. The court was tasked with determining whether the verdicts were unreasonable and whether the trial judge had failed to adequately warn the jury about the reliance on the complainant's evidence. Additionally, the court examined whether the failure of the trial counsel to seek specific directions constituted a miscarriage of justice and whether the absence of good character evidence and directions on good character amounted to an error.

The court found that all relevant matters were left open to the jury, and it was open to them to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. The trial judge gave strong and clear directions about the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant. The jury accepted the complainant as a truthful and reliable witness, and the court found no miscarriage of justice arising from the absence of good character evidence or directions on good character. The trial counsel had properly considered the question of calling good character evidence and made a tactical decision not to do so, which was deemed appropriate under the circumstances.

The appeal was dismissed as the court found that the jury had properly considered the evidence and that there was no miscarriage of justice. The trial judge's directions were sufficient, and the absence of good character evidence and directions did not prejudice the appellant. The court upheld the conviction on all four counts of aggravated indecent assault.

Orders