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R v Riscuta

R v Riscuta

Case [2003] NSWCCA 6 6 February 2003

Appeal

Admissibility of Evidence

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CITATION: Regina v Riscuta and Niga [2003] NSWCCA 6

HEARING DATE(S): 22 November 2002

JUDGMENT DATE:
6 February 2003

JUDGMENT OF: Heydon JA at 1; Hulme J at 128; Carruthers AJ at 163

DECISION: See paragraph 127

CATCHWORDS: Criminal law - appeal against conviction - leave to appeal against sentence - supply of prohibited drug - heroin - admissibility of voice identification evidence - intercepted telephone conversations - relevance - s 55 (1) Evidence Act 1995 - probative value - whether trial judge's direction on voice identification evidence was adequate - overconfidence in witness - whether witness's prior familiarity with voice identified amounted to unfair prejudice to accused - Evidence Act 1995 s 137 - identification evidence - Evidence Act 1995 s 116 - whether trial judge's summing up was satisfactory - perverse verdict - search warrant - execution of search warrant by night - Jones v Dunkel - failure of accused to call particular witness - failure of Crown to call particular witness - operation of proviso to s 6(1) of Criminal Appeal Act 1912 - where no substantial miscarriage of justice has actually occurred - whether appellant lost a chance, which was fairly open, of being acquitted or lost a real chance of acquittal - Sentencing - consideration of circumstances.

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995
Search Warrants Act 1985

CASES CITED: Azzopardi v R (2001) 205 CLR 50
Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651
Bulejcik v R (1996) 185 CLR 375
Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Domican v R (1992) 173 CLR 555
DPP v Hamman (unreported, CCA, 1 December 1998)
Driscoll v R (1977) 137 CLR 517
Dyers v R (2002) 192 ALR 181
Festa v R (2001) 185 ALR 394
Glennon v R (1994) 119 ALR 706
Jones v Dunkel (1959) 101 CLR 298
MacKenzie v R (1996) 190 CLR 348
RPS v R (2000) 199 CLR 620
R v Adler (2001) 52 NSWLR 451
R v Blakeman [1999] NSWCCA 415
R v Buckland [1977] 2 NSWLR 452
R v Dodd (1991) 57 A Crim R 349
R v Dungay (2001) 126 A Crim R 216
R v Fahda [1999] NSWCCA 267
R v Marshall (2000) 113 A Crim R 190
R v Newland (1997) 98 A Crim R 455
R v Peel (1971) 1 NSWLR 247
R v Phelan (1993) 66 A Crim R 447
R v Smith [1984] 1 NSWLR 462
R v Simpson [2001] NSWCCA 534
R v Taufua [1999] NSWCCA 205
R v Todd (1982) 2 NSWLR 517
Veen v R (No 2) (1987-1988) 164 CLR 465
Velevski v R (2002) 187 ALR 233
R v Whyte [2002] NSWCC 343

PARTIES :
Regina v Doru Riscuta
Regina v Mariana Niga

FILE NUMBER(S): CCA 60802/01; 60283/02

COUNSEL: Mr K G Horler AM QC (Riscuta)
Mr S J Odgers SC/Mr C B Simpson (Niga)
Mr G I O Rowling (Respondent)

SOLICITORS:
John Bettens & Co (Riscuta)
Baird &…

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 Riscuta

Details

AGLC: R v Riscuta and Niga [2003] NSWCCA 6
Case: [2003] NSWCCA 6
Decision Date: 6 February 2003

CaseChat Overview and Summary

In the matter of R v Riscuta, the appellant contested his conviction and sentence for supplying a prohibited drug, heroin. The case was heard in the Supreme Court of Victoria, which examined several legal issues pertinent to the case. The court had to determine the admissibility of voice identification evidence obtained from intercepted telephone conversations and assess whether the trial judge's direction on this evidence was adequate. Additionally, the court considered whether the witness's prior familiarity with the voice identified constituted unfair prejudice under s 137 of the Evidence Act 1995. Another key issue was whether the summing up by the trial judge was satisfactory and if the verdict reached could be considered perverse. Furthermore, the court evaluated the execution of the search warrant by night in light of the case Jones v Dunkel and the effect of the accused's and the Crown's failure to call particular witnesses.

The court addressed these issues by first examining the admissibility of the voice identification evidence, concluding that its probative value outweighed any prejudicial effect, in accordance with s 55(1) of the Evidence Act 1995. The court found that the trial judge's direction to the jury regarding the voice identification evidence was adequate and did not result in overconfidence on the part of the witness. It also ruled that the witness's prior familiarity with the voice identified did not amount to unfair prejudice under s 137 of the Evidence Act 1995. Regarding the summing up, the court held that it was satisfactory and did not result in a perverse verdict. In relation to the execution of the search warrant, the court determined that it complied with legal standards. The court found no substantial miscarriage of justice occurred and that the appellant did not lose a real chance of acquittal due to the failures of the accused and the Crown to call particular witnesses.

The court concluded that the appeal against conviction was dismissed, and the sentence was affirmed. The court held that the appellant had not demonstrated that a substantial miscarriage of justice had occurred or that he lost a real chance of acquittal due to the issues raised. The appeal was thus unsuccessful, and the original conviction and sentence were upheld. The court's reasoning was grounded in a thorough analysis of the evidence and the applicable legal principles, leading to the final outcome of affirming the appellant's conviction and sentence.

Orders