Giovanni Romano v R (a pseudonym) - [2019] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Hearing dates: 31 August 2018
Decision date: 18 March 2019
Before: Simpson AJA at [1]
Walton J at [34]
Button J at [38]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – trial for sexual assaults of adult complainant – whether complainant answered question in cross-examination about other sexual contact with applicant non-responsively – whether defence counsel subsequently addressed jury inappropriately – whether trial judge misdirected jury about final address of defence counsel – appeal against conviction dismissed
CRIMINAL LAW – appeal against sentence – aggregate sentence – whether trial judge adopted inappropriate implicit cumulation between indicative sentences – whether trial judge failed to consider question of implicit concurrence adequately – appeal against sentence dismissed
Legislation Cited: Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 141(1)(b), 143 and 293
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases Cited: Browne v Dunn (1894) The Reports 67
Jeffree v R [2017] NSWCCA 72
Category: Principal judgment
Parties: Giovanni Romano (a pseudonym) (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Appellant)
T Smith (Respondent)
Solicitors:
Lawyers Corp Pty Ltd (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/166134
Publication restriction: Pseudonym adopted for the appellant
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 March 2017

Before:

Bennett SC DCJ

File Number(s):

2014/166134

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Button J in which the relevant facts and circumstances, and the relevant passages of transcript, have been fully set out. I agree with the orders his Honour proposes. In order to explain my reasons, some repetition of what appears in the judgment of Button J will be necessary.
The relevant facts are these. The complainant and the appellant were in a relationship for 9 years, and were married for two and a half years. They have two children. The complainant has a daughter by a previous relationship. The family lived in a country town in NSW (to which I will refer as country town A).
The marriage came to an end in August 2013. However, by reason of their shared parenting of their children, they maintained contact. The complainant moved to a different, distant, country town (to which I will refer as country town B). The appellant visited her from time to time.
The events the subject of the indictment took place on 2 June 2014. The complainant alleged that the appellant sexually assaulted her in her motor vehicle after picking her up from the airport on her return from an overseas holiday. She made immediate complaint, first to her sister, then her mother, and finally reported the matter to police. Investigations produced DNA evidence that revealed that semen on the complainant’s…

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 Giovanni Romano v R (a pseudonym)

Details

AGLC: Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Case: [2019] NSWCCA 49
Decision Date: 18 March 2019

CaseChat Overview and Summary

The appeal before the court involved two separate issues. Firstly, the appellant contested his conviction for sexual assaults against an adult complainant, arguing that the trial judge should have directed the jury to disregard a non-responsive answer provided by the complainant during cross-examination about other sexual contact with the appellant. The appellant also claimed that the defence counsel's final address to the jury was inappropriate and that the trial judge misdirected the jury about the final address. Secondly, the appellant challenged the aggregate sentence imposed, arguing that the trial judge adopted an inappropriate implicit cumulation between the indicative sentences and failed to consider the question of implicit concurrence adequately.

The court addressed the first issue by examining the trial judge's handling of the non-responsive answer during cross-examination and the final address by defence counsel. The court found that the trial judge had appropriately directed the jury to disregard the non-responsive answer and that there was no inappropriate conduct by defence counsel warranting a mistrial. Furthermore, the court held that the trial judge's direction to the jury about the final address was not misdirection. The court dismissed the appeal against conviction.

Regarding the second issue, the court assessed whether the trial judge had adopted an inappropriate implicit cumulation between the indicative sentences and whether the judge had adequately considered implicit concurrence. The court found that the trial judge had appropriately balanced the factors relevant to sentencing and had adequately considered implicit concurrence. The court dismissed the appeal against sentence.

The court confirmed the conviction and sentence of the appellant, Giovanni Romano, finding no merit in the grounds of appeal presented.

Orders