Qoro v R

Case [2008] NSWCCA 220 26 September 2008

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New South Wales
Court of Criminal Appeal

CITATION: Qoro v R [2008] NSWCCA 220

HEARING DATE(S): 27 May 2008

JUDGMENT DATE:
26 September 2008

JUDGMENT OF: Giles JA at 1; Johnson J at 2; Hall J at 81

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - aggravated sexual assault in company - claim of miscarriage of justice from refusal to discharge jury - claim that trial judge left possible basis for conviction to jury which had not been relied upon by Crown - alleged error in refusal to withdraw picture identification evidence from jury - no error demonstrated - appeal against conviction dismissed - suggested error in use of evidence concerning appellant's psychiatric condition on sentence - no error established - appeal against sentence dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Maric v The Queen (1978) 52 ALJR 631
Crofts v The Queen [1996] 186 CLR 427
Robinson v R (2006) 162 A Crim R 88
Smale v R [2007] NSWCCA 328
Sieders v R [2008] NSWCCA 187
R v Blick (2000) 111 A Crim R 326
R v Tugaga (1994) 74 A Crim R 190
R v Howard (2005) 152 A Crim R 7
R v Sood [2007] NSWCCA 214
Papakosmas v The Queen (1999) 196 CLR 297
R v Shamouil (2006) 66 NSWLR 228
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Hemsley [2004] NSWCCA 228
R v Hamid (2006) 164 A Crim R 179
House v The King (1936) 55 CLR 499
R v Khouzame [2000] NSWCCA 505
R v Merritt (2004) 59 NSWLR 557

PARTIES: Sela Ratu Qoro (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3071

COUNSEL: Mr GA Brady (Applicant)
Mr DC Frearson SC (Respondent)

SOLICITORS: Brenda Duchen (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0214

LOWER COURT JUDICIAL OFFICER: His Honour Judge Berman SC

LOWER COURT DATE OF DECISION: 24 April 2007

2007/3071

GILES JA
JOHNSON J
HALL J
26 September 2008

SELA RATU QORO v REGINA

Judgment

1 GILES JA: I agree with Johnson J.

2 JOHNSON J: The Appellant, Sela Ratu Qoro, appeals against conviction and seeks leave to appeal against sentence arising from his conviction and sentence in the Sydney District Court for an offence of aggravated sexual assault in company contrary to s.61JA(1) Crimes Act 1900.

3 The Appellant was convicted following a trial before his Honour Judge Berman SC and a jury which commenced on 28 August 2006 and concluded on 14 September 2006. The offence for which the Appellant was convicted carries a maximum penalty of imprisonment for life with a standard non-parole period of 15 years. On 24 April 2007, the Appellant was sentenced to a term of imprisonment of 14 years, comprising a non-parole period of 10 years to date from 4 January 2006 and to expire…

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 Qoro v R

Details

AGLC: Qoro v R [2008] NSWCCA 220
Case: [2008] NSWCCA 220
Decision Date: 26 September 2008

CaseChat Overview and Summary

In the case of Qoro v R, the appellant contested both his conviction and sentence in the High Court of Australia. The dispute centred on charges of aggravated sexual assault in company, with the appellant arguing that a miscarriage of justice occurred due to the trial judge's handling of the jury instructions and the admission of certain evidence. Specifically, the appellant claimed that the trial judge did not adequately discharge the jury despite the appellant's request, and that the judge allowed a potentially unsound basis for conviction to remain with the jury. Furthermore, the appellant argued that the admission of a particular picture identification evidence was erroneous, and that the trial judge's consideration of the appellant's psychiatric condition during sentencing was flawed.

The legal issues before the court were whether the trial judge erred in not discharging the jury and in allowing the contested evidence to remain with the jury, as well as whether there was an error in the admission of the picture identification evidence and in the use of the appellant's psychiatric condition during sentencing. The court found that no such errors had been demonstrated. The judge's decision to not discharge the jury was within their discretion, and the evidence in question was relevant and properly admitted. The picture identification evidence was deemed admissible and properly considered by the jury, and the use of the appellant's psychiatric condition during sentencing did not constitute an error. The court was satisfied that the trial judge's decisions were within the bounds of legal propriety and that the appellant's conviction and sentence were correctly determined.

Consequently, the appeal against both the conviction and the sentence was dismissed. The court found that the trial judge had not erred in any material way, and that the jury's verdict and the sentence imposed were both appropriate given the evidence and circumstances of the case. The appellant's claims of a miscarriage of justice were rejected, and the original findings and sentence were upheld. The court's decision reinforces the principle that appeals against conviction and sentence are subject to a high standard of proof, and that the trial judge's discretion and evidentiary rulings are to be given significant deference.

Orders