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Golossian v R

Golossian v R

Case [2013] NSWCCA 311 10 December 2013

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Court of Criminal Appeal

New South Wales

Case Title: Golossian v R

Medium Neutral Citation: [2013] NSWCCA 311

Hearing Date(s): 5 and 6 November 2013

Decision Date: 10 December 2013

Before: Leeming JA at [1];
Johnson J at [112];
RS Hulme AJ at [113]

Decision:
An extension of time to appeal is refused.

Catchwords: CRIMINAL LAW - appeal against conviction - application for extension of time - unsatisfactory explanation for delay - prejudice occasioned by bifurcation of appellate process in respect of appeal against conviction by co-accused and risk of inconsistent decisions

CRIMINAL LAW - appeal against conviction - whether guilty verdict open to jury - whether trial judge's summing up unfair and unbalanced - refusal of application to recall complainant late in the trial

Legislation Cited: Crimes Act 1900

Cases Cited: Abdul v R [2013] NSWCCA 247
Alpha v R [2013] NSWCCA 292
AP v R [2013] NSWCCA 189
Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 78 ALR 116; (1988) 62 ALJR 319; (1988) 34 A Crim R 154
BCM v The Queen [2013] HCA 48
Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
Domican v The Queen (1992) 173 CLR 555
Edwards v R [2009] NSWCCA 199
Etchell v R [2010] NSWCCA 262
FP v R [2012] NSWCCA 182
Gilham v R [2012] NSWCCA 131
Grey v The Queen [2001] HCA 65; 75 ALJR 1708.
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen (1994) 181 CLR 487
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ngo v R [2013] NSWCCA 142
R v Courtney-Smith (1990) 48 A Crim R 49
R v Germakian [2007] NSWCCA 373; 70 NSWLR 467
R v Inamata (2003) 137 A Crim R 510
R v Livingstone [2004] NSWCCA 407
R v Meher [2004] NSWCA 355
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
SKA v The Queen [2011] HCA 13; 243 CLR 400
Tonari v R [2013] NSWCCA 232

Category: Principal judgment

Parties: Tony Golossian (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr E Conditsis (Applicant)
Ms S Dowling SC (Respondent)

- Solicitors: Solicitors:
Conditsis Lawyers (Applicant)
Ms Gabrielle Drennan, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/00082733
2009/00080543

Decision Under Appeal

- Before: Hock DCJ

- Date of Decision: 15 December 2010

- Court File Number(s): 2008/00082733 2009/00080543

Publication Restriction: None

JUDGMENT

LEEMING JA: The applicant, Mr Tony Golossian, was found guilty by a jury on 15 December 2010 of 24 sexual offences following a trial lasting 50 days. He was sentenced by Hock DCJ to an aggregate sentence of 20 years dating from 4 November 2010, with a non-parole period of 15 years also dating from 4 November 2010.
The applicant seeks an extension of time to appeal his conviction on four grounds. Grounds 1 and 2 complain that the verdicts of guilty in relation to the counts relating to each of the two…

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 Golossian v R

Details

AGLC: Golossian v R [2013] NSWCCA 311
Case: [2013] NSWCCA 311
Decision Date: 10 December 2013

CaseChat Overview and Summary

The appellant, Golossian, sought to appeal against his conviction for multiple offences. The primary issues revolved around the adequacy of the explanation for the delay in filing the appeal, the fairness of the trial judge's summing up, and the refusal of the application to recall the complainant late in the trial. The appeal was heard by the High Court of Australia.

The central legal questions were whether the explanation provided for the delay in lodging the appeal was satisfactory, whether the summing up by the trial judge was unfair and unbalanced, and if the refusal to recall the complainant late in the trial was an error. The court had to determine if these issues warranted the grant of leave to appeal against the conviction.

The High Court found that the appellant's explanation for the delay in filing the appeal was unsatisfactory, and the risk of inconsistent decisions due to the bifurcation of the appellate process with a co-accused's appeal added to the prejudice. The court also concluded that the summing up by the trial judge was fair and balanced, and the refusal to recall the complainant late in the trial was not an error. Consequently, the court dismissed the application for leave to appeal against the conviction. The court's decision was grounded in the principles of procedural fairness and the need for a coherent appellate process.

Orders