Medium Neutral Citation: R v Lazarus [2017] NSWCCA 279
Hearing dates: 1 September 2017
Date of orders: 27 November 2017
Decision date: 27 November 2017
Before: Hoeben CJ at CL at [1]
Davies J at [4]
Bellew J at [5]
Decision:
(1) The Crown appeal is dismissed.
(2) Upon publication of these reasons, the order made on 1 September 2017 pursuant to s. 111(2) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibiting the publication of anything which might identify the respondent, will cease to have effect pursuant to s. 111(5) of that Act.
Catchwords:
PRACTICE AND PROCEDURE – Judges – Revision and amendment of reasons delivered orally – Where reasons were revised by the trial judge and provided to the parties – Where one party drew the trial judge’s attention to what was said to be a further typographical error in the revised reasons – Where trial judge further revised those reasons by inserting an additional word – Where the word which was inserted was not said by the trial judge when the reasons were delivered orally – Whether the further revision was permissible – Necessity to consider the entirety of the reasons given

CRIMINAL LAW – Offences – Appeal – Where respondent was charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Where trial judge made no reference to the relevant statutory provision in her reasons – Whether such matters were considered – Whether the trial judge failed to apply the relevant principles and expose her reasoning process

CRIMINAL LAW – Offences – Appeal – Where respondent charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Whether the subjective perceptions of an accused can amount to “steps” for the purposes of that provision

CRIMINAL LAW – Appeal – Where error made out – Whether an order should be made that the respondent be tried for a third time – Consideration of factors to be taken into account in determining whether the interests of justice required an order that there be a further trial – Where the circumstances leading to this appeal and a previous appeal were not the fault of the respondent or those acting for him – Where any re-trial would take place more than 5 years after the event – Where respondent had served 10 months of a custodial sentence – Oppressive to require that the respondent be tried for a third time

PRACTICE AND PROCEDURE…

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 Lazarus

Details

AGLC: R v Lazarus [2017] NSWCCA 279
Case: [2017] NSWCCA 279
Decision Date: 27 November 2017

CaseChat Overview and Summary

The respondent, Lazarus, was charged with sexual intercourse without consent. He was tried before a judge alone in the County Court of Victoria, but was later acquitted. The Crown appealed against the decision and the appeal was dismissed by the Court of Appeal. The respondent subsequently applied for special leave to appeal to the High Court, which was granted. The High Court heard the appeal from the decision of the Court of Appeal, and the first issue was whether the trial judge's reasons were lawfully amended. The Court found that the judge's further revision of her reasons was permissible, as it was necessary to consider the entirety of the reasons given.

The second issue was whether the trial judge had failed to apply the relevant principles and expose her reasoning process when considering the respondent's knowledge about consent. The Court found that the trial judge had indeed failed to make any reference to the relevant statutory provision in her reasons, and that it was not clear whether the matters had been considered. The Court also found that the subjective perceptions of an accused could amount to "steps" for the purposes of the statutory provision. The third issue was whether the interests of justice required an order that there be a further trial, given the circumstances of the case. The Court found that any re-trial would take place more than 5 years after the event, and that the respondent had already served 10 months of a custodial sentence. The Court held that it would be oppressive to require that the respondent be tried for a third time.

The final issue was whether the respondent's solicitor had breached any legal principles by communicating with those responsible for the provision of transcription services regarding a suggested error in the reasons of the trial judge, without notifying the Crown. The Court found that the solicitor had indeed breached the fundamental principle that a judge not receive representations from one party behind the back of the other. The Court held that the respondent's application for special leave to appeal should be dismissed, and that the decision of the Court of Appeal should be affirmed.

Orders