R v Bazan - [2010] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAZAN
[2010] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
5 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Appellant was convicted in the District Court by jury verdict of two counts of rape - where the defendant’s state of mind as to whether the complainant was consenting was in issue at trial - where consent was in issue - where defence counsel failed to cross-examine on a critical matter that went to defendant's state of mind - where defence counsel failed to explore at trial the effect of drug use - where defence counsel failed to lead good character evidence - where defence counsel failed to explore at trail instructions given to him that defendant had had a prior sexual relationship with the complainant - whether incompetence of defence counsel at trial resulted in a risk of a miscarriage of justice.
Held: appeal allowed - retrial ordered - failure to cross-examine on critical matters was a significant deficiency in the presentation of the defence - good character evidence was important evidence which related to the credibility of the defendant - there is a real risk that a miscarriage of justice may have occurred as a result of the manner in which the defence case was presented and conducted.
Ali v The Queen (2005) 79 ALJR 662; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301; R v Birks (1990) 19 NSWLR 677; Re Ratten [1974] VR 201; R v Miletic [1997] 1 VR 593; Strauss v Francis (1866) LR 1 QB 379; R v GDB [2000] 1 SCR 520; R v S [1998] 3 NZLR 392; Teeluck v Trinidad and Tobago [2005] 1 WLR 2421, considered.

R v BAZAN
[2010] SASCFC 50
Court of Criminal Appeal Doyle CJ, Gray and White JJ

DOYLE CJ: I would allow the appeal, set aside the convictions recorded in the District Court, and order that there be a retrial on the Information. I agree with the reasons given by Gray J, and there is nothing that I wish to add.
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Pablo Edgardo Bazan, was convicted by jury verdict of two counts of rape following a trial in the District Court. A majority verdict was returned on each count.
The incident giving rise to both counts occurred on 16 March 2008 at a suburban home at Burton. The first count related to an act of sexual intercourse by an act of cunnilingus upon the complainant. The second count related to an act of vaginal sexual intercourse upon the same complainant.
On the hearing of…

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 Bazan

Details

AGLC: R v Bazan [2010] SASCFC 50
Case: [2010] SASCFC 50
Decision Date: 5 November 2010

CaseChat Overview and Summary

In *R v Bazan*, the appellant was convicted in the District Court by a jury on two counts of rape. The central dispute at trial concerned the defendant's state of mind regarding the complainant's consent, with consent itself being a key issue.

The appeal raised the question of whether the incompetence of defence counsel at trial resulted in a risk of a miscarriage of justice. Specifically, the court considered whether defence counsel's failure to cross-examine on a critical matter relating to the defendant's state of mind, failure to explore the effect of drug use, failure to lead good character evidence, and failure to explore prior sexual relationship instructions constituted a miscarriage of justice.

The Full Court of the Supreme Court of South Australia held that the failure to cross-examine on critical matters was a significant deficiency in the presentation of the defence. The court also noted that good character evidence was important as it related to the credibility of the defendant. Consequently, the court found a real risk that a miscarriage of justice had occurred due to the manner in which the defence case was presented and conducted.

The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

In the circumstances of the present proceeding, I have reached the conclusion that the defendant was deprived of a fair trial by reason of the conduct of the defence case. The matters of complaint may be characterised as material irregularities in the trial and those matters may have affected the outcome of the trial. There is a real risk that the defendant was deprived by his counsel’s conduct of a chance of an acquittal. There is a real risk that a miscarriage of justice may have occurred as a result of the manner in which the defence case was presented and conducted. Conclusion I would allow the appeal, set aside the convictions and order a re-trial. I agree with the orders proposed by Gray J. I do not wish to add to his reasons.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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