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Gorge v The Queen

Gorge v The Queen

Case [2021] NSWCCA 206 27 August 2021

Trial Fairness

Judicial Impartiality

Summing-Up

Trial Balance

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gorge v R [2021] NSWCCA 206
Hearing dates: 29 March 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Before: Hoeben CJ at CL [1]
Hamill J [2]
Wilson J [80]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – summing-up – balance – fairness – no allegation that trial Judge became advocate for prosecution – where trial Judge failed to refer to submissions made on behalf of accused person at trial – where no complaint made at trial – requirements of balance and fairness – extent of the need for comment on evidence and arguments – where trial short and issues clear and uncomplicated – summing-up to be considered as a whole

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61J, 61M
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; [2016] HCA 46
Dixon v R [2017] NSWCCA 299
Domican v R (1992) 173 CLR 555; [1992] HCA 13
El-Jalkh v R [2009] NSWCCA 139
Healey v R [2006] NSWCCA 235
Maraache v R [2013] NSWCCA 199
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
R v Davis [1999] NSWCCA 15
R v Meher [2004] NSWCCA 355
R v Zorad (1990) 19 NSWLR 91
RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: Mahir Samy Gorge (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
C Young (Respondent)
Solicitors:
Hardin Lawyers (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s): 2018/00179788
Publication restriction: Statutory non-publication order regarding the identity of the victim and other young persons.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 August 2019

Before:

Judge Ingram SC

File Number(s):

2018/00179788

Judgment

HOEBEN CJ AT CL: I agree with Hamill J and the orders which he proposes.
HAMILL J: Mahir Gorge seeks to appeal against his convictions in relation to one count of aggravated indecent assault contrary to 61M of the Crimes Act 1900 (NSW) (count 1) and one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (count 3). The two offences were allegedly committed on 5 June 2018 and the complainant, Fatima (a pseudonym),[1] was a 17-year-old employee at the applicant’s café in San Souci. Mr Gorge was found guilty on 15 August 2019 following his trial in the District Court before his Honour Judge Ingram SC and a jury. On 22 November…

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 Gorge v The Queen

Details

AGLC: Gorge v The Queen [2021] NSWCCA 206
Case: [2021] NSWCCA 206
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of Gorge v The Queen, the accused was found guilty of various criminal offences. The dispute arose during the summing-up phase of the trial, where the accused alleged that the trial judge failed to maintain a balanced and fair approach. The High Court of Australia was tasked with examining this contention. The central legal issue was whether the trial judge's summing-up was fair and balanced, particularly in light of the judge's failure to reference submissions made on behalf of the accused. The court had to consider the requirements of balance and fairness in a trial summing-up, especially in the context of a short trial with clear and uncomplicated issues.

The court found that, while it was important for a summing-up to be balanced and fair, there was no requirement for the trial judge to comment on every piece of evidence and argument presented during the trial. In this instance, the summing-up was considered as a whole, and it was determined that the trial judge did not become an advocate for the prosecution. Furthermore, since no complaint was raised during the trial itself, the court held that the failure to reference certain submissions did not necessarily constitute a failure of balance or fairness. The court concluded that the summing-up, viewed in its entirety, met the necessary standards.

Ultimately, the High Court dismissed the appeal, upholding the original decision of the lower court. The court found that the trial judge's summing-up was fair and balanced, and that the absence of specific references to the accused's submissions did not undermine the overall fairness of the trial. The final orders of the court were to uphold the conviction and sentence as determined by the lower court.

Orders