R v Norris - [2014] NSWCCA 76

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Norris [2014] NSWCCA 76
Hearing dates: 17 April 2014
Decision date: 09 May 2014
Before: Beazley P at [1];
R A Hulme J at [2];
Bellew J at [35]
Decision:
1. Appeal allowed.
2. The ruling of his Honour Judge Lerve on 30 January 2014 excluding the evidence of Ms Sandra Trabuio in relation to the detection of spermatozoa in smears made during the examination of the complainant on 20 April 2011 and her opinion as to the possible period between ejaculation and the creation of the smears is vacated.

Catchwords: CRIMINAL LAW - appeal against exclusion of prosecution evidence during trial - Criminal Appeal Act 1912, s 5F(3A) - expert evidence relating to likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation erroneously excluded - trial judge failed to take into account evidence at its highest and upon the assumption that the jury would act upon it - exclusion substantially weakened prosecution case - ruling vacated
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: R v ELD [2004] NSWCCA 219
Category: Principal judgment
Parties: Regina
Lee Robert Norris
Representation: Counsel:
Mr P Ingram SC (Crown)
Mr C Smith with Ms C Feiner (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid Commission

File Number(s): 2011/304383
Decision under appeal

Jurisdiction:

9101

Before:

Lerve DCJ

File Number(s):

2011/304383

Judgment

BEAZLEY P: I agree with the reasons of R A Hulme J and with the orders his Honour proposes. I also expressly endorse his Honour's remarks at [3] in relation to the concession made by counsel for the respondent.

R A HULME J: The Director of Public Prosecutions (NSW) appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a decision of a District Court judge to exclude certain evidence sought to be led in the trial of the respondent, Lee Robert Norris.

Counsel for the respondent, Mr C Smith, with his usual and commendable candour, has conceded that the appeal should be upheld. I am of the view that the concession is appropriate but it is necessary to explain why that is so.

The trial

On 23 January 2014 the respondent was arraigned upon an indictment alleging that he committed an offence of sexual intercourse without consent upon a woman with knowledge that she was not consenting. He pleaded that he was not guilty and a jury was empanelled.

On the fifth day of the trial, 30 January 2014, counsel who appeared in this Court with Mr Smith, objected to the admissibility of certain expert evidence which I will detail shortly. A voir dire was conducted; submissions were made; and the learned trial judge, his Honour Judge Lerve, upheld the objection and excluded the evidence.

The following morning the Crown Prosecutor successfully sought a discharge of the jury on the basis that the Director of Public Prosecutions was proposing to appeal against the judge's ruling.

The issues in…

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 Norris

Details

AGLC: R v Norris [2014] NSWCCA 76
Case: [2014] NSWCCA 76
Decision Date: 09 May 2014

CaseChat Overview and Summary

The appeal in R v Norris involved a criminal case in which the appellant was convicted of indecent assault. The prosecution's evidence was pivotal, and one of the critical pieces of evidence excluded during the trial was expert testimony regarding the likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation. The appellant contested the conviction, arguing that the exclusion of this evidence was a significant error that substantially weakened the prosecution's case.

The central legal issue before the court was whether the trial judge's exclusion of the expert evidence constituted a miscarriage of justice. The court had to determine if the exclusion of the expert evidence on the likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation was erroneous and whether it substantially affected the fairness of the trial. The court also needed to consider whether the trial judge had adequately assessed the evidence at its highest and on the assumption that the jury would act upon it, as required by the Criminal Appeal Act 1912, s 5F(3A).

The court found that the exclusion of the expert evidence was indeed erroneous and that the trial judge had failed to take the evidence at its highest and on the assumption that the jury would act upon it. The court held that the exclusion substantially weakened the prosecution's case, thereby affecting the fairness of the trial. The court concluded that the trial judge's error was a miscarriage of justice and that the exclusion of the expert evidence warranted vacating the conviction. The court's reasoning was grounded in the statutory requirement that the trial judge must consider the evidence in its highest form and on the assumption that the jury would act upon it, and that any error in this regard could lead to a miscarriage of justice.

Orders