R v GED - [2003] NSWCCA 296

Reported Decision:
141 A Crim R 135

New South Wales

Court of Criminal Appeal

CITATION: R v GED [2003] NSWCCA 296

HEARING DATE(S): 13 October 2003

JUDGMENT DATE:
16 October 2003

JUDGMENT OF: Studdert J at 1; Barr J at 31; Greg James J at 32

DECISION: Appeal allowed; convictions and sentences quashed; new trial ordered.

CATCHWORDS: Criminal law - record of interview of accused tendered by Crown - failure of counsel for accused to cross examine Crown witnesses on assertions in interview - jury instructed it might consider such failure a concession assertions untrue - jury not instructed on other possible explanations for failure to cross examine - accused's right to remain silent - whether trial miscarried.

LEGISLATION CITED: Criminal Appeal Act, s 6

CASES CITED: Azzopardi v The Queen (2001) 205 CLR 50
Dyers v The Queen [2002] HCA 45
Edwards v The Queen (1993) 178 CLR 193
R v Abdallah (2001) 127 A Crim R 46
R v Birks (1990) 19 NSWLR 677
R v Manunta (1989) 54 SASR 17
R v Markuleski (2001) 52 NSWLR 82
RPS v The Queen (2000) 199 CLR 620

PARTIES :
Regina v GED

FILE NUMBER(S): CCA 60195/03

COUNSEL: P.W. Miller (Crown)
H. Dhanji (Appellant)

SOLICITORS: C.K. Smith (Crown)
M. Chalmers (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0093

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60195/03

STUDDERT J
BARR J
GREG JAMES J
Thursday 16 October 2003

REGINA v G E D

Judgment

1 STUDDERT J: The appellant, identified for present purposes as GED, stood trial in the District Court on an indictment containing five counts:

(i) the first count charged the appellant with an aggravated indecent assault at Woolgoolga on 22 March 2002;

(ii) the second count charged the appellant with a further aggravated indecent assault at Woolgoolga, this time on 24 March 2002;

(iii) the third count charged the appellant with aggravated sexual assault without consent at Woolgoolga on 24 March 2002;

(iv) the fourth count charged the appellant with a further offence of aggravated sexual intercourse without consent at Woolgoolga on 24 March 2002;

2 The appellant pleaded not guilty to all counts and after a trial of several days the jury returned with verdicts of guilty on counts 1-4, and a verdict of not guilty in relation to count 5. Following conviction, the appellant was sentenced on 17 December 2002 to imprisonment for a fixed term of twelve months in respect each of counts 1 and 2, and then in respect of count 3 a sentence of imprisonment for two years with a non parole period of eighteen months was imposed. In relation to count 4, the appellant was sentenced to a fixed term of imprisonment of eighteen months. All the sentences were ordered to date from 4 December 2002.

3 No application for leave to appeal against these sentences has been pursued, but the…

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 GED

Details

AGLC: R v GED [2003] NSWCCA 296
Case: [2003] NSWCCA 296
Decision Date: 16 October 2003

CaseChat Overview and Summary

The case before the court involved the respondent, GED, who was on trial for a criminal offence. The central issue revolved around the admissibility of a record of an interview conducted with the accused and the consequences of the accused's legal counsel failing to cross-examine Crown witnesses regarding assertions made in that interview. The jury was instructed that the failure to cross-examine could be considered a concession by the accused that the assertions were untrue. However, the jury was not instructed on alternative explanations for this failure, such as strategic decisions by the defence counsel. The court had to determine whether the accused's right to remain silent had been compromised and if the trial had miscarried due to these circumstances.

The legal issues before the court included whether the trial judge's instructions to the jury regarding the failure to cross-examine were appropriate and whether the accused's right to remain silent had been infringed. The court examined whether the jury should have been provided with alternative explanations for the failure to cross-examine, such as strategic reasons, and whether the trial was thereby rendered unfair. The accused's right to remain silent and the potential implications of this right on the trial process were also considered.

The court concluded that the trial judge's instructions to the jury were not appropriate as they did not account for other plausible explanations for the failure to cross-examine. The court found that the jury should have been informed of these alternative explanations to ensure a fair trial. Furthermore, the court determined that the accused's right to remain silent had indeed been infringed upon. Consequently, the court held that the trial had miscarried due to these errors.

The final orders of the court included a quashing of the conviction and a direction for a retrial, ensuring that the accused would have an opportunity to present their case under corrected legal procedures that respect their right to remain silent and provide a fair trial.

Orders