Isika v The Queen - [2015] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Isika v R [2015] NSWCCA 304
Hearing dates: 14 October 2015
Decision date: 04 December 2015
Before: Macfarlan JA at [1];
Hall J at [20];
Bellew J at [21]
Decision:
(1) That the appellant’s convictions on counts four and five charged in the Indictment issued in June 2014 by the Director of Public Prosecutions be quashed.
(2) That there be a new trial on those counts.
Catchwords: CRIMINAL LAW – indecent assault – act of indecency – appeal against conviction – whether a miscarriage of justice occurred as a result of trial judge’s direction to the jury – whether trial judge’s direction contravened the principles in Black v R [1993] HCA 71; 179 CLR 44 – whether trial judge’s direction placed undue pressure on the jury to reach a decision - whether trial judge encouraged jurors to agree to compromise verdicts
Legislation Cited: Crimes Act 1900 (NSW), ss 61L, 61N
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules (NSW), r 4
Cases Cited: ARS v R [2011] NSWCCA 266
Black v R [1993] HCA 71; 179 CLR 44.
R v TK [2009] NSWCCA 151; 74 NSWLR 299
R v Accused (CA 87/88)(1988) 2 NZLR 46; 3 CRNZ 301
R v Walhein (1952) 36 Cr App R 167
Timbery v The Queen [2007] NSWCCA 355; 180 A Crim R 232
Category: Principal judgment
Parties: Christopher Isika (Appellant)
Regina (Respondent)
Representation:
Counsel:
C Loukas SC (Appellant)
S Dowling SC (Respondent)
Solicitors:
Peter Murphy Criminal Law (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/143378
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

18 June 2014 (Conviction)
8 August 2014 (Sentence)

Before:

Neilson DCJ

File Number(s):

2013/143378

Judgment

MACFARLAN JA: Following a trial in June 2014 in the District Court before a judge and jury, the appellant was convicted of an offence, contrary to s 61L of the Crimes Act 1900 (NSW), of one count of assaulting the complainant (and at the time also committing an act of indecency) and of one count of an offence, contrary to s 61N(2) of the Crimes Act, of committing an act of indecency towards the same complainant. The Indictment alleged that those offences occurred between 25 and 26 January 2010. The appellant was acquitted of three other charges which concerned acts of a sexual nature alleged to have been committed on 16 January 2010 in relation to the same complainant.
The appellant’s first ground of appeal asserts that “[a] miscarriage of justice occurred as a result of the trial judge’s direction to the jury in response to a question from the jury” whilst it was considering its verdict. The question was what would happen if the jury members could not agree.
The second ground of appeal asserts that “[t]he convictions were unreasonable and cannot be supported by the evidence” as they were “inconsistent with the verdicts…

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 Isika v The Queen

Details

AGLC: Isika v The Queen [2015] NSWCCA 304
Case: [2015] NSWCCA 304
Decision Date: 04 December 2015

CaseChat Overview and Summary

The appellant, Isika, appealed against his conviction for indecent assault, challenging the trial judge's direction to the jury. The appellant argued that the trial judge's direction contravened the principles in Black v R, resulting in a miscarriage of justice. The case was heard in the High Court of Australia, which was required to determine whether the trial judge's direction placed undue pressure on the jury to reach a decision and whether it encouraged the jurors to agree to compromise verdicts.

The court considered whether the trial judge's direction to the jury contravened the principles in Black v R, which establish that a trial judge must not place undue pressure on the jury to reach a verdict. The court also considered whether the direction encouraged the jurors to agree to compromise verdicts, which could result in a miscarriage of justice. The court found that the trial judge's direction did not contravene the principles in Black v R, as it did not place undue pressure on the jury to reach a decision. The court also found that the direction did not encourage the jurors to agree to compromise verdicts.

The High Court of Australia dismissed the appeal, upholding the conviction. The court held that the trial judge's direction to the jury did not contravene the principles in Black v R, nor did it place undue pressure on the jury to reach a decision. The court also held that the direction did not encourage the jurors to agree to compromise verdicts. Consequently, the appellant's conviction for indecent assault was upheld.

No further orders were made by the court.

Orders