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Kapanadze v The Queen

Kapanadze v The Queen

Case [2017] NSWCCA 69 13 April 2017

Criminal Liability

Appeal

Admissibility of Evidence

Contempt of Court

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kapanadze v R [2017] NSWCCA 69
Hearing dates: 29 March 2017
Date of orders: 13 April 2017
Decision date: 13 April 2017
Before: Hoeben CJ at CL at [1]
Walton J at [102 ]
R A Hulme J at [103]
Decision:
(1) In relation to the conviction appeal, I would refuse leave under rule 4 of the Criminal Appeal Rules for the appellant to rely upon Ground 1 and I would dismiss the appeal in relation to Grounds 2 and 4.
(2) In relation to the application for leave to appeal against sentence, I would grant leave to appeal against sentence but dismiss the appeal.

Catchwords: CRIMINAL LAW – conviction appeal – one count of aggravated sexual assault (person under 16), one count of aggravated indecent assault and two counts of attempt aggravated sexual intercourse – whether tendency evidence properly admitted – whether evidence should have been admitted despite absence of objection – probative value of evidence to be balanced against unfair prejudice – non responsive prejudicial answer by expert under cross-examination – whether jury should have been discharged – whether direction to disregard answer adequate – whether R v Markuleski direction should have been given – conviction appeal dismissed – application for leave to appeal against sentence – whether special circumstances should have been found – leave to appeal granted but appeal against sentence dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61J(1), 61M(2), 61P,
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
Evidence Act 1995 (NSW) ss 66, 97(1)(b), 137
Criminal Appeal Rules (NSW) – r 4
Cases Cited: Collier v R [2012] NSWCCA 213
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Doney v The Queen [1990] HCA 51; 171 CLR 207
House v The King [1936] HCA 40; 55 CLR 499
IMM v The Queen [2016] HCA 14; 257 CLR 300
Penza and Di Maria v Regina [2013] NSWCCA 21
Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
Poniris v R [2014] NSWCCA 100
Potts v R [2012] NSWCCA 229; 227 A Crim R 217
Qing An v Regina [2007] NSWCCA 53
R v FDP [2008] NSWCCA 317; 74 NSWLR 645
R v Kapanadze (District Court, Townsden DCJ, 1 December 2014, unrep)
R v Kapanadze (District Court, Townsden DCJ, 10 December 2014, unrep)
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Regina v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Steve v Regina [2008] NSWCCA 231; 189 A Crim R 68
Tieu v R [2016] NSWCCA 111
TO v R [2017] NSWCCA 12
Category: Principal judgment
Parties: Murad Kapanadze – Appellant
Regina – Respondent Crown
Representation:
Counsel:
A Radojev – Appellant
E Balodis – Respondent Crown
Solicitors:
T Gray – Appellant
Solicitor for Public Prosecutions –…

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 Kapanadze v The Queen

Details

AGLC: Kapanadze v The Queen [2017] NSWCCA 69
Case: [2017] NSWCCA 69
Decision Date: 13 April 2017

CaseChat Overview and Summary

The appellant, Kapanadze, was convicted by a jury of one count of aggravated sexual assault, one count of aggravated indecent assault and two counts of attempted aggravated sexual intercourse. The appellant appealed against his conviction and also applied for leave to appeal against his sentence. The appeal against conviction concerned the admissibility of certain evidence and whether certain directions should have been given to the jury. The appeal against sentence concerned whether special circumstances should have been found, warranting a reduction in sentence. The appeal was heard in the High Court of Australia. The central legal issues addressed in the appeal were whether the trial judge had erred in admitting certain evidence, whether the jury should have been discharged due to a prejudicial answer by an expert witness, and whether the trial judge should have given a direction to the jury in line with R v Markuleski.

The court found that the evidence in question was properly admitted as it had significant probative value that was not substantially outweighed by the danger of unfair prejudice. The court held that even though no objection was made to the evidence at trial, it was properly admitted as it was relevant to the appellant's state of mind and intent. The court also found that the jury should not have been discharged due to the prejudicial answer by the expert witness, as the trial judge had given an appropriate direction to the jury to disregard the answer. The court held that no Markuleski direction should have been given, as the answer did not constitute a serious miscarriage of justice. The court found no error in the trial judge's handling of the evidence and directions, and dismissed the appeal against conviction. In relation to the appeal against sentence, the court found that special circumstances existed, warranting a reduction in sentence, and granted leave to appeal against sentence. However, the court ultimately dismissed the appeal against sentence, finding that the sentence was not manifestly excessive.

In conclusion, the High Court dismissed the appeal against conviction and denied the application for leave to appeal against sentence. The court found that the evidence was properly admitted and that the trial judge appropriately handled the prejudicial answer by the expert witness. The court granted leave to appeal against sentence due to the existence of special circumstances but dismissed the appeal against sentence, finding that the sentence was not manifestly excessive. The appellant's convictions and sentence were therefore upheld.

Orders