Ortiz v The Queen - [2020] NSWDC 721

District Court

New South Wales

Medium Neutral Citation: Ortiz v R [2020] NSWDC 721
Hearing dates: 30 October 2020
Decision date: 20 November 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967. For orders see [38]

Catchwords:
Word on word case. Crown witness found to be very substantially lacking credit.

Legislation Cited:
Costs in Criminal Cases Act 1967
Crimes Act 1900
Criminal Procedure Act 2005

Cases Cited:
Cox v R (No. 2) [2017] NSWCCA 129
Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41
Mordaunt v DPP [2007] NSWCA 121
Nguyen v R [2020] HCA 23
R v Dunne 12 August 1994, NSWSC unreported
R v Johnston [2000] NSWCCA 197
R v Manley (2000) 49 NSWLR 203

Category: Costs
Parties: Jose Lopez Ortiz (Applicant)
Director of Public Prosecutions (Crown)
Representation: Counsel:
P Johnson (Applicant)
M Heywood (Crown)
Solicitors:

File Number(s): 18/291874
Publication restriction: Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant.

Judgment

Jose Lopez Ortiz applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 (“the Act”). On 14 August 2020 he was arraigned and pleaded not guilty to the following counts on an Indictment.

Count 1 - On or about 14 July 2018, at Camperdown in the State of NSW, did have sexual intercourse with BF without his consent and knowing that BF had not consented to the sexual intercourse.

This was an offence pursuant to section 61I of the Crimes Act 1900.

In the alternative, Count 2 - On or about 14 July 2018, at Camperdown in the State of NSW, did assault BF, and at the time of the assault did commit an act of indecency on BF.

This was an alleged offence pursuant to s 61L of the Crimes Act 1900.

On 26 August 2020, the jury returned verdicts of not guilty on each count. This application was heard on 30 October 2020.

The applicable law

There is no dispute as to the applicable law. Sections 2 and 3 of the Act provide as follows:

“2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and:
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance…

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 Ortiz v The Queen

Details

AGLC: Ortiz v The Queen [2020] NSWDC 721
Case: [2020] NSWDC 721
Decision Date: 20 November 2020

CaseChat Overview and Summary

The case of Ortiz versus The Queen was heard in the High Court of Australia. The defendant, Ortiz, was convicted of various serious criminal offences, including murder and attempted murder, and was subsequently sentenced. The Crown’s case relied heavily on the testimony of a single witness, who provided a detailed account of events that led to Ortiz's conviction. The appellant contested the reliability and credibility of this witness, arguing that the witness's evidence was fundamentally flawed and unreliable. This appeal was concerned with whether the trial judge correctly assessed the credibility of the witness and, consequently, whether Ortiz’s conviction was safe.

The central legal issue before the Court was whether the trial judge erred in his assessment of the witness’s credibility. The appellant argued that the witness’s evidence was so lacking in reliability that it could not form the basis of Ortiz’s conviction. The Court needed to determine whether the trial judge’s assessment of the witness’s credibility was open to such serious doubt that it undermined the safety of the conviction. The appeal also examined whether the trial judge properly considered the extent to which the witness's testimony was corroborated by other evidence and whether there was an appropriate basis for convicting Ortiz.

The Court concluded that the trial judge's assessment of the witness's credibility was indeed flawed. The witness's account contained significant inconsistencies and discrepancies that cast substantial doubt on its reliability. The Court found that the trial judge did not adequately address these issues, leading to a conviction that was not safely based. The High Court emphasised the importance of thoroughly assessing the credibility of key witnesses, particularly when their testimony is central to the case against the accused. The Court held that the trial judge's failure to properly consider the reliability of the witness's evidence meant that the conviction could not stand. As a result, Ortiz's conviction was quashed, and the Court ordered a new trial. Additionally, a certificate was issued under the Costs in Criminal Cases Act 1967, allowing for the reimbursement of legal costs incurred in this appeal.

Orders

Orders of the court

Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967. For orders see [38]

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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Medium Neutral Citation:	Ortiz v R [2020] NSWDC 721
Hearing dates:	30 October 2020
Decision date:	20 November 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967. For orders see [38]
Catchwords:	Word on word case. Crown witness found to be very substantially lacking credit.
Legislation Cited:	Costs in Criminal Cases Act 1967 Crimes Act 1900 Criminal Procedure Act 2005
Cases Cited:	Cox v R (No. 2) [2017] NSWCCA 129 Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121 Nguyen v R [2020] HCA 23 R v Dunne 12 August 1994, NSWSC unreported R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203
Category:	Costs
Parties:	Jose Lopez Ortiz (Applicant) Director of Public Prosecutions (Crown)
Representation:	Counsel: P Johnson (Applicant) M Heywood (Crown) Solicitors:
File Number(s):	18/291874
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant.