Legal Research
Cases
R v Bragias

R v Bragias

Case [2016] NSWCCA 219 7 October 2016

Type to search within this case.

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	R v Bragias
Medium Neutral Citation:	[2016] NSWCCA 219
Hearing Date(s):	24 April 2016
Decision Date:	7 October 2016
Before:	McCallum J at [1] R A Hulme J at [69] Schmidt J at [70]
Decision:	Leave to appeal granted; appeal dismissed
Catchwords:	CRIMINAL LAW – conviction appeal – offence of taking a motor vehicle with assault – whether verdict was unreasonable, or cannot be supported, having regard to the evidence – where complainant admitted lying to police – assessment of coherence of his account – consideration of jury’s advantage in hearing the evidence
Legislation Cited:	Crimes Act 1900 (NSW), ss 98, 154C(2) Criminal Appeal Act 1912 (NSW), s 6(1) Evidence Act 1995 (NSW), s 60
Cases Cited:	Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 Rattan v The Queen (1974) 131 CLR 510; [1974] HCA 35 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 1 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category:	Principal judgment
Parties:	Harrison Bragias (applicant) Regina (respondent)
Representation:	Counsel: S Healey (applicant) N J Adams (respondent) Solicitors: Russell Byrnes Solicitors (applicant) Office of the Director of Public Prosecutions (respondent)
File Number(s):	2013/34409
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	2 April 2015
Before:	McClintock SC DCJ
File Number(s):	2013/34409

JUDGMENT

McCALLUM J: Harrison Bragias was arraigned on 20 October 2014 on a joint indictment (together with Wahib Fajloun) containing one count of robbery in company with wounding contrary to s 98 of the Crimes Act 1900 (NSW) (count 1) and an alternative count of taking a motor vehicle with assault contrary to s 154C(2) of the Crimes Act (count 2). The trial proceeded before McClintock SC DCJ with a jury over 19 days. The jury found each accused not guilty of count 1 but guilty of count 2.
Mr Bragias appeals against his conviction on the sole ground that the verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence.[1] There is no challenge to the judge’s directions to the jury (which, with respect, were impeccable) or to any of the many judgments and rulings given throughout the trial.
[1] Criminal Appeal Act 1912 (NSW), s 6(1).
Mr Bragias was sentenced on 2 April 2015 for the offence in count 2 together with two unrelated offences to which he had pleaded guilty before the trial (an assault occasioning actual bodily harm and an offence of demanding money with menaces). The judge sentenced Mr Bragias to an aggregate sentence of imprisonment for 4 years and 2 months with a non-parole period of 2 years and 9 months expiring on 12 April 2016. Mr Bragias was released to parole on that date, before this appeal…

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 Bragias

Details

AGLC: R v Bragias [2016] NSWCCA 219
Case: [2016] NSWCCA 219
Decision Date: 7 October 2016

CaseChat Overview and Summary

The case of R v Bragias involved the appellant, who had been convicted of taking a motor vehicle with assault. The appeal against the conviction was heard by the High Court of Australia. The appellant argued that the verdict was unreasonable or could not be supported, considering the evidence, particularly in light of the complainant’s admission of lying to the police. The court was required to determine whether the jury’s decision, despite the complainant's credibility issues, was still just and reliable.

The primary legal issues before the court were whether the jury's verdict was unreasonable or unsafe, given the complainant's admission of dishonesty. The court had to assess the coherence of the complainant's account and evaluate the weight that should be given to the complainant’s credibility in light of their admission of lying. Additionally, the court considered the advantage the jury had in hearing the evidence firsthand, including the complainant’s testimony and demeanour, which might not have been fully captured in written submissions.

In reaching its decision, the court found that despite the complainant’s admission of dishonesty, the jury was still in the best position to assess the overall credibility of the evidence presented. The court held that the jury’s decision, based on the evidence as a whole, was not unreasonable or unsafe. The court emphasised the importance of the jury's role in evaluating witness credibility and the benefits of hearing evidence in person. Consequently, the appeal was dismissed, affirming the conviction.

No further orders were made by the court.

Orders