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Odisho v R

Odisho v R

Case [2018] NSWCCA 19 28 February 2018

Appeal

Jurisdiction

Unconscionable Conduct

Compensatory Damages

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Odisho v R [2018] NSWCCA 19
Hearing dates: 23 August 2017
Date of orders: 28 February 2018
Decision date: 28 February 2018
Before: Price J at [1]
Bellew J at [17]
Hamill J at [155]
Decision:
1. Leave in respect of ground 4 is refused.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Evidence – Unfavourable witness – Cross-examination – Cross-examination of unfavourable witness in respect of matters relevant only to credibility – Whether such questioning went beyond such matters – Whether further grant of leave was required – Whether miscarriage of justice arose

CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Whether summing-up failed to adequately balance the respective cases of the Crown and the accused – Where trial judge repeatedly reminded the jury of the defence case – Structure of the summing-up a matter for individual judgment – No requirement on the part of the trial judge to “compartmentalise” the summing-up by separately identifying and summarising the defence case – Ultimate question whether the trial judge has put the defence case in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf

CRIMINAL LAW – Appeal – Offences – Where jury found the appellant guilty of wounding with intent to cause grievous bodily harm – Whether verdict unreasonable and could not be supported by the evidence – Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant held the requisite intention – Where a combination of circumstances relied upon by the Crown provided a sound basis upon which it was open to the jury to infer such intention on the part of the appellant – Where issue not explored in evidence by trial counsel
CRIMINAL LAW – Appeal – Practice and procedure – Directions to the jury as to the question of intention – No basis upon which to conclude that issues were conflated by the trial judge – No issue raised by trial counsel as to the directions given – Position taken by trial counsel entirely unsurprising – Leave to appeal refused
Legislation Cited: Crimes Act 1990 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Abdel-Hady (‘SA’) v R [2011] NSWCCA 196
Adam v R (2001) 207 CLR 96; [2001] HCA 57
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
AP v R [2013] NSWCCA 189
ARS v R [2011] NSWCCA 266
Casey v R [2016] NSWCCA 77
Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46
Filippou v R (2015) 256 CLR 47; [2015] HCA 29
Golossian v R [2013] NSWCCA 311
Greenhalgh v R [2017] NSWCCA 94
Haoui v R [2008] NSWCCA 209
M v R (1994) 181 CLR 487; [1994] HCA 63
McKell v R [2017] NSWCCA 291
Palmer v R (1998) 193 CLR 1; [1998] HCA…

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 Odisho v R

Details

AGLC: Odisho v R [2018] NSWCCA 19
Case: [2018] NSWCCA 19
Decision Date: 28 February 2018

CaseChat Overview and Summary

In the case of Odisho v R, the appellant brought an appeal against a conviction for wounding with intent to cause grievous bodily harm. The appeal raised several issues concerning the trial process, including the manner of cross-examination of an unfavourable witness, the summing-up of the trial judge, and the sufficiency of the evidence to support the jury's verdict. The High Court of Australia was tasked with examining these matters.

The court first considered whether the cross-examination of the unfavourable witness exceeded the permissible scope, which was limited to matters relevant to credibility. The court found that the cross-examination remained within the appropriate boundaries and did not necessitate further leave. Additionally, the court assessed whether the trial judge's summing-up adequately balanced the cases of both the Crown and the appellant. The court concluded that the trial judge's approach, while not strictly compartmentalising the defence case, sufficiently allowed the jury to consider the issues presented by the defence.

Further, the court examined the sufficiency of the evidence to establish the appellant's intent to cause grievous bodily harm. The court found that the combination of circumstances presented by the Crown provided a sound basis for the jury's inference of intent. The court also noted that the issue of intent was not specifically explored by trial counsel, which did not impact the sufficiency of the evidence. Finally, the court rejected the notion that the trial judge conflated issues during the summing-up, as no such issue was raised by the trial counsel.

Ultimately, the court upheld the conviction, finding that the trial process was conducted appropriately and that the evidence sufficiently supported the jury's verdict. The appeal was dismissed, and the conviction was affirmed.

Orders