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 88Category: Principal judgment Parties: Luke Andrew Lazarus (Appellant)
The Crown (Respondent)Representation: Counsel:
Solicitors:
T Game SC / D Barrow (Appellant)
N Adams (Crown)
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.
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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.
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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…
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- AGLC
- Lazarus v The Queen [2016] NSWCCA 52
- Case
- [2016] NSWCCA 52
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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