R v Is (No 2) - [2019] ACTSC 390

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v IS (No 2)
Citation:	[2019] ACTSC 390
Hearing Dates:	2-4 July 2019; 18 July 2019
DecisionDate:	18 July 2019
Before:	Burns J
Decision:	See [25]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – statutory alternative charges of assault – nine transferred charges of assault – crown's case based almost exclusively upon the complainant’s evidence – accused gave evidence – self-defence raised – consideration of the evidence
Legislation Cited:	Crimes Act 1900 (ACT) s 28(2)(a) Supreme Court Act 1933 (ACT) s 68B
Cases Cited:	R v IS [2019] ACTSC 389
Parties:	The Queen (Crown) IS (Accused)
Representation:	Counsel M Jones (Crown) W Terracini SC with D Berents (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Numbers:	SCC 288 of 2018; SCC 289 of 2018

BURNS J:

These are criminal proceedings. The Crown holds the onus of proving the accused guilty with respect to each of the charges to the standard of beyond reasonable doubt. It is accepted that self-defence is raised by the evidence in these proceedings. In those circumstances, the onus falls on the Crown to establish beyond reasonable doubt that the accused was not acting in self-defence at the time of any physical contact between himself and the complainant.

It has been submitted that this boils down to a case of word against word, and to a great extent that is correct. But my obligation is not to determine who I believe, or to determine which version of events I consider to be more plausible. Before convicting the accused with respect to any of the charges, I must be satisfied of his guilt with respect to that particular charge to the standard beyond reasonable doubt.

I must consider each charge separately. The one exception to that is that if I have a doubt about the complainant's credibility or reliability with regard to one charge, that is a doubt which I must bring to bear with regard to all of the charges.

This is a case in which the Crown relies almost exclusively upon the evidence of the complainant, BT. BT is the only Crown witness who was present at the time that the alleged events occurred. As such, she is a vital witness for the Crown. I need to scrutinise the evidence of BT closely before I could convict the accused with respect to these charges. That is not to say that I cannot convict the accused based simply upon the evidence of BT, but it is clear that she is such a vital witness that I must consider her evidence very carefully before concluding that the accused is guilty of these charges.

The accused gave evidence during the course of the trial and in doing so, he did not assume any onus of proof. The onus of proof constantly remains on the Crown. It is in the nature of this case,…

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 Is (No 2)

Details

AGLC: R v Is (No 2) [2019] ACTSC 390
Case: [2019] ACTSC 390
Decision Date: 18 July 2019

CaseChat Overview and Summary

In this case, the respondent, Is, was charged with nine transferred charges of assault. The matter was heard by a judge sitting alone in the District Court of Western Australia. The respondent pleaded not guilty to all charges and the case proceeded to trial. The Crown relied almost entirely on the evidence of the complainant, while the respondent gave evidence in his defence, claiming self-defence.

The court was required to determine whether the respondent had committed the nine transferred charges of assault. Given the nature of the Crown's case, the court needed to carefully consider the complainant's evidence, the respondent's evidence, and whether the respondent's defence of self-defence was valid. The court needed to weigh the credibility and reliability of the evidence presented, particularly in light of the absence of any corroborating evidence.

In delivering judgment, the court found that the complainant's evidence was not reliable and did not establish the offences beyond reasonable doubt. The court found the respondent's evidence more credible and accepted his claim of self-defence. Consequently, the court acquitted the respondent of all charges. The court also commented on the importance of corroboration in cases where the Crown's case relies solely on the evidence of a single complainant.

The court ordered that the respondent be acquitted of all charges. The court did not make any orders for costs.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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