R. v Auliff - [2001] NSWCCA 393

CITATION: R. v. AULIFF [2001] NSWCCA 393

FILE NUMBER(S): CCA 60784/00

HEARING DATE(S): 25/09/2001

JUDGMENT DATE:
25 September 2001

PARTIES :

Regina (Respondent)
Martin Andrew Auliff (Appellant)

JUDGMENT OF: Powell JA at 1,31; Sully J at 29; Bell J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 00/11/0049

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : L.M.B. Lamprati (Crown)
G.D. Wendler (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
Bronwyn Hay Solicitor & Attorney (Crows Nest) (Appellant)

CATCHWORDS: CRIMINAL LAW - Practice and procedure - Whether formal order for separation of jury required. - CRIMINAL LAW - Sexual offences - Appeal against conviction - Whether inconsistent verdicts.

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA 60784/00

POWELL JA

SULLY J

BELL J

25 September 2001

REGINA v. MARTIN AULIFF

Judgment

The Appellant appeals from a conviction by a jury following a trial on indictment before Shillington DCJ.

2 In the indictment the Appellant was charged with three offences, they being:

1. that on or about 30 December 1998 at Sydney he did unlawfully cause to be taken by the complainant a stupefying drug, namely flunitrazepam, with intent to commit an indictable offence, namely, to have sexual intercourse without the consent of the complainant, knowing that she was not consenting.

2. that on 30 December, 1998, at Sydney, he did assault the complainant and that he, at the time of such assault, did commit an act of indecency on the complainant; and

3. that on 30 December, 1998, at Sydney, he did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

3 At the conclusion of the trial the jury found the Appellant guilty of the offence charged in the first count, were unable to agree on the proper disposition of the offence charged in the second count, and found the accused not guilty of the offence charged in the third count of the indictment. The jury was then discharged without verdict on the second count and then the trial judge proceeded to sentence the Appellant in respect of the offence found proved.

4 Two grounds of appeal have been taken by the Appellant for the purpose of this appeal, they being:

(1) that in all the circumstances, the verdict of the jury on count 1 of the indictment was unreasonable or unsatisfactory or unsafe, in that the verdicts on counts 1 and 3 of the indictment were inconsistent.

(2) that in all the circumstances there has been a fundamental failure of procedure going to the root of the trial, by reason of the failure of the trial judge to make a formal order pursuant to s.54(b) of the Jury Act 1977 before permitting the jury to separate after inviting them to consider their verdicts.

5 The facts insofar as they were sought to be proved at the trial were that the complainant, who was a tourist and who had met the Appellant about a week prior…

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 Auliff

Details

AGLC: R. v Auliff [2001] NSWCCA 393
Case: [2001] NSWCCA 393
Decision Date: 25 September 2001

CaseChat Overview and Summary

In the matter of R. v Auliff, the defendant was convicted of sexual offences and appealed against his conviction. The case reached the court, which was tasked with determining whether the trial judge had erred in not issuing a formal order for the separation of the jury during deliberations. This issue arose from concerns about the potential influence of one juror on the others, which was alleged to have affected the fairness of the trial.

The central legal issue before the court was whether the trial judge's failure to formally separate the jury constituted a significant procedural error that warranted the overturning of the defendant's conviction. The court also had to consider whether the verdicts reached by the jury were inconsistent and, if so, whether this inconsistency was so significant that it undermined the integrity of the verdicts. The court examined the principles governing jury separation and the standards for assessing the consistency of jury verdicts.

The court concluded that while the trial judge should have issued a formal order for the separation of the jury, the error did not reach the threshold of a significant procedural error that would justify overturning the conviction. The court found that the jury's verdicts, though not perfectly consistent, were not so inconsistent as to undermine their integrity. The court held that the error, while regrettable, did not prejudice the defendant's right to a fair trial. Consequently, the appeal was dismissed.

The court's final order was to uphold the conviction and sentence imposed on the defendant by the trial court, thereby affirming the decision reached in the lower court.

Orders