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R v Micallef

R v Micallef

Case [2002] NSWCCA 480 5 December 2002

Appeal

Admissibility of Evidence

Circumstantial Evidence

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Micallef [2002] NSWCCA 480

FILE NUMBER(S):
60348/02

HEARING DATE(S): 4 November 2002

JUDGMENT DATE: 05/12/2002

PARTIES:
Regina (NSW)
Alan George Micallef - Appellant

JUDGMENT OF: Sully J Dunford J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3016

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL:
P Barrett - Crown
P Byrne SC - Appellant

SOLICITORS:
SE O'Connor - Crown
DJ Humphreys - Appellant

CATCHWORDS:
CRIMINAL LAW
proof
circumstantial evidence
totality of circumstances
appeal
whether verdicts unreasonable

LEGISLATION CITED:

DECISION:
(By majority) Appeal dismissed, convictions confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60348/02
SULLY J
DUNFORD J
BELL J
Thursday, 5 DECEMBER 2002

R v Alan George MICALLEF

Judgment

SULLY J: I have had the advantage of reading in draft the reasons prepared respectively by Dunford J and by Bell J. I need not repeat Dunford J’s canvass of the facts relevant to the appeal, and of the contending submissions that were put in connection with the appeal.
So far as concerns the first ground of appeal, I think that the process of reasoning that appears in paragraphs [39] – [44] inclusive is convincing. My own consideration of the matters of which his Honour speaks in those paragraphs has been influenced by the discussion which is to be found, in particular, in the judgment of Dawson J and McHugh J in Shepherd v The Queen (1990) 170 CLR 573. I note that Gaudron J and Toohey J published separately simple concurrences with the judgment of Dawson J. At 170 CLR 579,580 Dawson J says:
“As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury might quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.” [emphasis added]
At 170 CLR 592, 593 McHugh J notes an observation of Lord Simon of Glaisdale in Reg v Kilbourne[1973] A.C. 729 at 758 that:
“Circumstantial evidence ……… works by cumulatively, in geometrical progression, eliminating other possibilities.”
McHugh J then proceeds:
“If an inference guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt – not whether any particular…

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 Micallef

Details

AGLC: R v Micallef [2002] NSWCCA 480
Case: [2002] NSWCCA 480
Decision Date: 5 December 2002

CaseChat Overview and Summary

In the case of R v Micallef, the respondent was convicted of multiple counts of sexual assault, including the sexual penetration of a child under the age of 10 years, and was subsequently sentenced to imprisonment. The appeal to the court was based on the contention that the verdicts were unreasonable, given the evidence presented at trial. The court was required to determine whether the evidence, both direct and circumstantial, was sufficient to support the jury's verdicts.

The legal issues before the court included the evaluation of the sufficiency of the evidence to support the verdicts, specifically whether the evidence was both direct and circumstantial, and whether it was sufficient to establish the respondent's guilt beyond reasonable doubt. The court also needed to consider whether the totality of the circumstances supported the verdicts, and whether the jury's findings were unreasonable in light of the evidence presented.

In delivering its judgment, the court emphasised that the jury's role was to assess the credibility of the evidence and determine the guilt or innocence of the respondent. The court held that the evidence, when viewed as a whole, was sufficient to support the jury's verdicts. The court found that the evidence, both direct and circumstantial, established the respondent's guilt beyond reasonable doubt. The court also concluded that the jury's findings were not unreasonable, given the totality of the circumstances. The appeal was therefore dismissed, and the convictions and sentences were upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the convictions and sentences.

Orders