CITATION: QUALTIERI v REGINA [2006] NSWCCA 95
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 January 2006

JUDGMENT DATE:
4 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 111; Latham J at 124

DECISION: 1. Appeal allowed; 2. Convictions and sentences quashed; 3. Retrial ordered

CATCHWORDS: CRIMINAL LAW – appeal against conviction – sexual offences – person under the age of ten years – assault – acts of indecency – sexual intercourse – whether erroneous admission of evidence – whether miscarriage of justice occurred – probative value – unfair prejudice – erroneous directions – rule 4 – whether prejudice resulting from not being able to cross-examine – evidence of uncharged incidents – relationship evidence – context evidence – tendency evidence – propensity evidence – guilty passion – unreasonable verdicts – motive to lie – unreliability – inconsistency

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
R v AH (1997) 42 NSWLR 702
R v ATM [2000] NSWCCA 475
R v Dann [2000] NSWCCA 185
R v Fletcher [2005] NSWCCA 338
R v Fraser (NSWCCA unreported 10 August 1998)
R v Guildford (2004) 148 A Crim R 558
R v RTB [2002] NSWCCA 104
R v Skaf (2004) NSWCCA 74

PARTIES: Rocco Qualtieri (Appl)
The Crown

FILE NUMBER(S): CCA 2005/1859

COUNSEL: P Boulten SC ( Appl)
D Frearson SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1177

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 26/01/2006

2005/1859

McCLELLAN CJ at CL
HOWIE J
LATHAM J
TUESDAY 4 APRIL 2006

QUALTIERI, Rocco v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was charged on 5 counts including offences of a sexual nature allegedly committed on BF. He pleaded not guilty and although acquitted on count one he was convicted on the other counts. He appeals his conviction. The counts were as follows:

Count One
That he, between 1 December 1997 and 31 December 1998, at Marrickville in the State of New South Wales, did incite BF, a person under the age of ten years, namely, either three years of age or four years of age to commit an act of indecency towards him. The offence was charged under s 61(O)(2) of the Crimes Act 1900 for which the maximum penalty is seven years imprisonment.

Count Two
That he, between 1 December 1997 and 19 May 1999, at Marrickville in the State of New South Wales, did assault BF, a person under the age of ten years, namely, either three years of age or four years of age, and at the time of such assault did commit an act of indecency on…

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 Qualtieri v R

Details

AGLC: Qualtieri v R [2006] NSWCCA 95
Case: [2006] NSWCCA 95
Decision Date: 4 April 2006

CaseChat Overview and Summary

The appellant, Qualtieri, was convicted of various sexual offences against a child under the age of ten years. The case was heard in the court of appeal, where Qualtieri sought to overturn his conviction. The central issues before the court involved the admissibility of certain evidence, potential miscarriage of justice, and the fairness of the trial process. The court had to determine whether the evidence was erroneously admitted, if the probative value outweighed any unfair prejudice, and if the directions given to the jury were correct. Additionally, the court considered whether the inability to cross-examine witnesses caused prejudice and the impact of evidence relating to uncharged incidents, relationships, context, tendency, propensity, and motive to lie.

The court examined the nature and content of the evidence in question, assessing its relevance and potential prejudicial effect. It found that while some evidence may have had a prejudicial impact, its probative value was significant in establishing the context and nature of the crimes. The court also considered whether any erroneous directions to the jury could have led to an unreasonable verdict. It concluded that the directions, though not perfect, did not result in a miscarriage of justice. The court further evaluated the impact of not being able to cross-examine witnesses, finding that it did not prejudice the appellant's case to an unreasonable extent. The court also addressed the use of evidence relating to uncharged incidents, relationships, and the tendency or propensity of the appellant, concluding that such evidence was appropriately used to support the prosecution's case.

In its decision, the court upheld the conviction, finding that the evidence was properly admitted and the trial was conducted fairly. The appeal was dismissed, and the original conviction stood. The court's ruling confirmed the admissibility of the contested evidence, the correctness of the jury's directions, and the overall fairness of the trial process. The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the trial court remain in effect.

Orders