R v ITA

Case [2003] NSWCCA 174 10 July 2003

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Reported Decision:
139 A Crim R 340

New South Wales

Court of Criminal Appeal

CITATION: Regina v ITA [2003] NSWCCA 174 revised - 11/07/2003

HEARING DATE(S): 27/06/03

JUDGMENT DATE:
10 July 2003

JUDGMENT OF: Ipp JA at 1; Buddin J at 187; Shaw J at 188

DECISION: (1) Dismiss grounds 1(A) and 5. (2) Refuse leave to appeal under r 4 of the Criminal Appeal Rules in respect of grounds 1(B), 2, 3 and 4. (3) Uphold ground 6 in part. (4) Set aside the verdict of guilty in respect of the charge of sexual assault with aggravating circumstances and substitute a verdict of guilty of sexual assault. (5) Reduce the head sentence imposed by Moore ADCJ in respect of count 1 by six months and reduce the non-parole period by six months. The sentence in respect of count 1 will therefore be six years six months imprisonment commencing on 8 October 2001 and expiring on 7 April 2008 with a non-parole period of four years six months commencing on 8 October 2001 and expiring on 7 April 2006. (6) In respect of count 3, uphold the appeal against sentence to the extent that the head sentence is reduced by six months. No change to be made to the non-parole period. The head sentence will therefore be three years six months imprisonment commencing on 8 April 2005 and expiring on 7 October 2008, with a non-parole period of one year commencing on 8 April 2005 and expiring on 7 April 2006 (7) The sentence in respect of count 3 should be cumulative to the extent of the six months.

CATCHWORDS: CRIMINAL LAW - Whether the indictment was defective and bad in law because it contained charges against two persons - Nature of the trial judge's task when summing up - Failure by counsel to raise objections to the trial judge's directions or omissions to direct - Criminal Procedure Act 1986, s 99 - Whether to grant leave under r 4 of the Criminal Appeal Rules to raise certain directions, or omissions to direct, as grounds of appeal - Whether a miscarriage of justice arose with respect to the trial judge's directions or omissions to direct - Whether it was open to the jury to conclude beyond reasonable doubt that the offence was committed in company - Factors for consideration when re-sentencing.

LEGISLATION CITED: Crimes Act 1900, s 61I, 61Q, 405AA
Crimes (Sentencing Procedure) Act 1999, s 21A
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986, ss 61(1), 99
Evidence Act, s 66(2)

CASES CITED: Annakin v R (1988) 17 NSWLR 202
Condon v R (1995) 83 A Crim R 335
Crane v The Director of Public Prosecutions [1921] 2 AC 299
Domican v The Queen (1992) 173 CLR 555
Edwards v R (1993) 178 CLR 193
Papakosmas v R (1999) 196 CLR 297
R v Assim [1966] 2 QB 249
R v Button (2002) 54 NSWLR 455
R v Davis [1999] NSWCCA 15
R v DH [2000] NSWCCA…

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 ITA

Details

AGLC: R v ITA [2003] NSWCCA 174
Case: [2003] NSWCCA 174
Decision Date: 10 July 2003

CaseChat Overview and Summary

The appeal was heard by the Court of Criminal Appeal of New South Wales. The respondent, the Director of Public Prosecutions, appealed against the decision of the trial judge to order a retrial of the appellants, who were charged with various offences, including conspiracy to commit a serious indictable offence. The trial judge had ruled that the jury's verdict was unreasonable or cannot be supported having regard to the whole of the evidence. The central legal issues involved whether the indictment was defective, the trial judge's summing up, and the failure of counsel to object to the directions or omissions during the trial. Additionally, the court considered whether leave should be granted under the Criminal Appeal Rules to raise certain directions or omissions as grounds for appeal and whether a miscarriage of justice had occurred.

The court began by examining the indictment, which indeed contained charges against two persons. However, it found that the indictment was not defective as it sufficiently informed the appellants of the charges against them. The court noted that the trial judge had performed their task in summing up by correctly directing the jury on the essential matters of the case. The court also observed that counsel's failure to object to the trial judge's directions or omissions during the trial did not constitute grounds for an appeal under the Criminal Procedure Act 1986. Furthermore, the court concluded that the jury had been properly directed on the issue of whether the offence was committed in company and that the trial judge's directions or omissions did not result in a miscarriage of justice. Lastly, the court outlined the factors to consider when re-sentencing the appellants.

Ultimately, the Court of Criminal Appeal dismissed the appeal, set aside the orders for a retrial, and remitted the matter to the District Court for re-sentencing. The court found that the trial had not been vitiated by any irregularity or injustice and that the appellants should be re-sentenced by the District Court. The appeal was dismissed, and the case was remitted for re-sentencing.

Orders