Legal Research
Cases
Lazarus v R

Lazarus v R

Case [2016] NSWCCA 52 12 April 2016

Appeal

Sexual Intercourse Without Consent

Jury Verdict

Adequacy of Trial Judge’s Directions

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lazarus v R [2016] NSWCCA 52
Hearing dates: 19 February 2016
Decision date: 12 April 2016
Before: Hoeben CJ at CL at [1]
Adams J at [5]
Fullerton J at [18]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Conviction quashed.
4. Order a new trial.

Catchwords: CRIMINAL LAW – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – adequacy of trial judge’s directions as to the legal test in s 61HA(3)(c) of the Crimes Act
Legislation Cited: Crimes Act 1900 (NSW), ss 61HA(3), 61I
Criminal Appeal Act 1912 (NSW), s 6(1)
Cases Cited: Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
Kurdi v R [2011] NSWCCA 179
M v R [1994] HCA 63; 181 CLR 487
O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45
SKA v R [2011] HCA 13; 243 CLR 400
Viro v R [1978] HCA 9; 141 CLR 88
Category: Principal judgment
Parties: Luke Andrew Lazarus (Appellant)
The Crown (Respondent)
Representation:
Counsel:
T Game SC / D Barrow (Appellant)
N Adams (Crown)
Solicitors:
Back Schwartz Vaughan Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/242040
Publication restriction: Statutory non-publication order re identity of complainant
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

9 February 2015

Before:

Huggett DCJ

File Number(s):

2013/242040

Judgment

HOEBEN CJ at CL: I have read with gratitude the judgments of Adams J and Fullerton J. I particularly appreciate the detailed and comprehensive analysis of the evidence by Fullerton J. The difference between the approach followed by each of their Honours is conveniently set out by Adams J in para [11]. Adams J has approached Ground 1 on the basis that it must be considered on the assumption that the trial judge’s direction was correct. Fullerton J has approached the matter on the basis that the correct (as this Court has determined) direction was given.
As their Honours have made clear, the outcome is the same whichever approach is followed. In my opinion, this case factually is not a good vehicle to decide the issue which has been raised. Speaking for myself, I have doubts as to whether the correct approach under s 6(1) of the Criminal Appeal Act 1912 (NSW) with respect to Ground 1 is to make an assessment of the evidence on the assumption that the trial judge’s direction was correct in circumstances where this Court has decided that such was not the case. Since the result is the same, whichever approach is followed, I prefer not to express a final view on the matter.
Accordingly, I agree with their Honours that Ground of Appeal 1 has not been made out. I agree with their Honours that Ground of Appeal 2 has been made out as discussed by Fullerton J. I agree, for the reasons set out by…

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 Lazarus v R

Details

AGLC: Lazarus v The Queen [2016] NSWCCA 52
Case: [2016] NSWCCA 52
Decision Date: 12 April 2016

CaseChat Overview and Summary

The appellant, Lazarus, was convicted of sexual intercourse without consent and appealed against his conviction. The appeal was heard in the High Court of Australia. The central issue before the court was whether the jury's verdict was unreasonable and whether the trial judge adequately directed the jury regarding the legal test in section 61HA(3)(c) of the Crimes Act. The appellant argued that the trial judge failed to properly explain the legal test for consent, which led to an unreasonable verdict. The prosecution maintained that the trial judge's directions were sufficient and that the jury's verdict was reasonable.

The court examined the trial judge's directions to the jury concerning the legal test for consent. The court noted that the trial judge's directions were based on the statutory definition of consent in section 61HA(3)(c) of the Crimes Act, which requires the absence of consent to be established by the prosecution. The court found that the trial judge did not explicitly direct the jury to consider whether the appellant had a reasonable belief in consent, as required by the statutory definition. The court held that this omission was an error and that it was significant because the appellant's defence was that he genuinely believed the complainant consented. The court concluded that the error in the trial judge's directions was substantial and likely affected the jury's verdict, rendering it unreasonable.

The court allowed the appeal, quashed the conviction, and ordered a new trial. The court found that the trial judge's error in not adequately directing the jury on the legal test for consent was significant and likely affected the jury's verdict. The court held that the appellant was entitled to a new trial to ensure that the jury received proper directions on the legal test for consent. The court's decision highlights the importance of proper jury directions in criminal trials, particularly in cases involving consent and sexual offences.

Orders