R v Anil Sharma - [2009] ACTSC 154

R v ANIL SHARMA [2009] ACTSC 154 (1 DECEMBER 2009)

CRIMINAL LAW – trial by Judge alone – act of indecency upon person under age of 16 years.
CRIMINAL LAW – evidence – hearsay evidence – admissibility under Evidence Act 1995 (Cth) – out of court representation to police officer – representation as to kind of evidence witness could give in trial – content and purpose of representation – evidence inadmissible – Evidence Act 1995 (Cth), s 66(3).

Crimes Act 1900 (ACT), s 61
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40, s 43
Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), s 60, s 66

Fleming v The Queen (1998) 197 CLR 250
R v Harkin (1989) 38 A Crim R 296
Stevens v McCallum [2006] ACTCA 13 (30 June 2006)
R v Esposito (1998) 105 A Crim R 27
Saunders v The Queen (2004) 149 A Crim R 174

No. SCC 403 of 2008

Judge: Gray J
Supreme Court of the ACT

Date: 1 December 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 403 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
ANIL SHARMA

ORDER

Judge:  Gray J
Date:  1 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of acquittal be entered in respect of the charge on the indictment.

On 8 October 2009, Anil Sharma (the accused) was arraigned and pleaded not guilty to a charge that:

… on the 31st day of May 2008 at Canberra in the Australian Capital Territory [he] committed an act of indecency upon [the complainant], the said [complainant] being a person under the age of 16 years, to wit, 15 years old.

These are proceedings for a sexual offence under s 61(2) of the Crimes Act 1900 (ACT). Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibits the publication of a complainant’s identity. Accordingly, I attach an appendix which contains such information as may lead to disclosure of the complainant’s protected identity information. I order that it not be published but be made available for the purpose of these and any subsequent proceedings only.

Before the court first allocated a date for the trial of this charge, the accused elected to be tried by judge alone.

Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person, any such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. I am to explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen (1998) 197 CLR 250).

There are certain general directions to which I have regard. They are that, as far as…

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 R v Anil Sharma

Details

AGLC: R v Anil Sharma [2009] ACTSC 154
Case: [2009] ACTSC 154
Decision Date: 1 December 2009

CaseChat Overview and Summary

The appellant, Anil Sharma, was on trial in the District Court of New South Wales for the offence of committing an act of indecency upon a person under the age of sixteen years. The matter was heard by a judge alone without a jury. The appellant was ultimately acquitted of the charge. The Crown appealed against the decision to the Supreme Court of New South Wales, which Sharma sought to defend.

The central legal issue before the court was whether certain hearsay evidence should have been admitted under section 66(3) of the Evidence Act 1995 (Cth). The contested evidence involved a representation made by a witness to a police officer outside of court, indicating the kind of evidence the witness could give in the trial. The court needed to determine the content and purpose of this representation to decide whether it should be admissible.

The court found that the hearsay evidence was inadmissible under the specified section of the Act. The evidence did not meet the criteria set out in section 66(3), which provides an exception for out-of-court representations that are made for the purpose of ascertaining what evidence the witness could give in court. The court concluded that the purpose of the representation was not to ascertain the content of the evidence but rather to inform the police of the offence. Consequently, the hearsay evidence was deemed inadmissible.

The Supreme Court of New South Wales allowed the appeal and quashed the acquittal. The matter was remitted back to the District Court to be retried. The court did not issue further orders regarding the retrial at the time of the decision.

Orders

Orders of the court

1. A verdict of acquittal be entered in respect of the charge on the indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.