R v Diaz - [2004] NSWCCA 251

CITATION: R v Diaz [2004] NSWCCA 251

HEARING DATE(S): 26/07/04

JUDGMENT DATE:
26 July 2004

JUDGMENT OF: Spigelman CJ at 26; Hidden J at 2; Buddin J at 29

DECISION: Appeal against conviction dismissed.; Leave to appeal against sentence granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Appeal against conviction - aggravated sexual assault - adequacy of directions about intoxication of complainant and appellant. - Application for leave to appeal against sentence - disparity from sentence passed on co-offender - whether special circumstances should have been found.

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Baartman [2000] NSWCCA 298
R v Harbulot [2003] NSWCCA 141

PARTIES :
Salvador Alex Diaz - Appellant
Regina - Respondent

FILE NUMBER(S): CCA 60378/03

COUNSEL: Ms S Kluss - Appellant
Dr P Power SC - Crown

SOLICITORS: Ross Hill & Associates - Appellant
S Kavanagh - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1021

LOWER COURT
JUDICIAL OFFICER : Shillington Acting DCJ

60378/03

SPIGELMAN CJ
HIDDEN J
BUDDIN J
Monday, 26 July, 2004

REGINA V Salvador Alex DIAZ

Judgment

1 SPIGELMAN CJ: Hidden J will deliver the first judgment.

2 HIDDEN J: After a trial in the District Court the appellant, Salvador Alex Diaz, was found guilty of sexual intercourse without consent in circumstances of aggravation. He was sentenced to a term of imprisonment to which I shall refer later. He appeals against his conviction and seeks leave to appeal against sentence.

3 He was tried jointly with a co-offender, JN, who also faced a second charge arising from the same incident. JN was found guilty of both charges and was also sentenced to a term of imprisonment.

4 It is unnecessary to refer to the evidence in any detail. On a night early in December 2000 the complainant, a 15-year-old girl, was with the appellant and JN at Darling Harbour. They were drinking cask wine and she became well intoxicated. That was not in contest at the trial and, indeed, there was abundant evidence to that effect in the Crown case. It was the case for the appellant and JN that they also were intoxicated. The complainant gave evidence that the appellant had forcible intercourse with her while JN held her down, over her screams of protest. She said that JN then had intercourse with her himself, in the teeth of her protests, giving rise to the second charge against him. The two men then left and she made prompt complaint to a security guard in the area and to a police officer who attended the scene. There was DNA evidence consistent with the appellant and JN having had sexual contact with her.

5 The appellant did not give evidence at the trial. However, in an electronically recorded interview with the police he said that he was drunk and that at one stage the complainant had behaved in a sexually provocative manner but that, because of his intoxication, he had no recollection of the period of time during which the sexual assaults were…

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 Diaz

Details

AGLC: R v Diaz [2004] NSWCCA 251
Case: [2004] NSWCCA 251
Decision Date: 26 July 2004

CaseChat Overview and Summary

The case of R v Diaz involved the appellant, Diaz, who was convicted of aggravated sexual assault. The appeal against conviction centred on the adequacy of the directions provided to the jury regarding the intoxication of both the complainant and the appellant. The appellant argued that the trial judge's directions did not sufficiently account for the impact of intoxication on the complainant's ability to consent and the appellant's state of mind. Additionally, the appellant sought leave to appeal against the sentence imposed, arguing that it was disproportionately higher than the sentence given to the co-offender. The case was heard by the court of appeal, which was tasked with determining whether the trial judge's directions were adequate and if special circumstances warranted a different sentence.

The court examined the trial judge's directions to the jury, focusing on whether they accurately reflected the legal principles governing intoxication and consent in the context of sexual assault. The court also considered the sentencing disparity between Diaz and the co-offender, exploring whether the trial judge should have found special circumstances that would justify a lesser sentence for Diaz. The court assessed the evidence presented at trial and the arguments made by both parties, including the appellant's intoxication and its effect on the events of the night in question. The appeal hinged on the court's interpretation of the trial judge's directions and the principles of sentencing proportionality.

In its decision, the court found that the trial judge's directions to the jury were adequate and correctly reflected the legal principles regarding intoxication and consent. The court concluded that the jury was properly informed about the impact of intoxication on the complainant's ability to consent and the appellant's state of mind. Regarding the sentence, the court held that while there was a disparity between the sentences imposed on Diaz and the co-offender, the trial judge had appropriately considered all relevant factors and did not err in failing to find special circumstances. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was also refused.

The final orders of the court were that the conviction and sentence of Diaz would stand as imposed by the trial judge. The court found no merit in the arguments presented by the appellant regarding the adequacy of the jury directions or the sentencing disparity, and therefore, the original judgment was upheld.

Orders