R v Slewa - [2003] NSWCCA 50

CITATION: R v Slewa [2003] NSWCCA 50

HEARING DATE(S): 07/02/2003

JUDGMENT DATE:
4 March 2003

JUDGMENT OF: Santow JA at 1; Simpson J at 72; Smart AJ at 73

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - conviction appeal - sexual assault - whether jury verdict unreasonable and not supported by evidence - whether jury should have held a reasonable doubt as to guilt - whether trial miscarried because there was not a separate direction on lies - where counsel for the offender at trial had not sought such a direction - whether absence of an express direction on need for a jury to be satisfied of guilt beyond reasonable doubt of an essential factual element resulted in a miscarriage of justice

LEGISLATION CITED: Criminal Appeal Rules rule 4

CASES CITED: Barca v the Queen (1975) 133 CLR 82
Edwards v The Queen (1993) 178 CLR 193
R v Galea and Yeo [2001] NSWCCA 270
R v GJH (2001) 122 A Crim R 361
Hodge's case (1838) 168 All ER 503
M v the Queen (1994) 181 CLR 487
MFA v the Queen [2002] HCA 53)
Shepherd v the Queen (1990) 170 CLR 573
Zoneff v The Queen (2000) 200 CLR 234

PARTIES :
Disho Slewa (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 60498/02

COUNSEL: H K Dhanji (Appellant)
D M Howard (Respondent)

SOLICITORS: D J Humphreys (Appellant)
S E O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3201

LOWER COURT
JUDICIAL OFFICER : Judge Coorey

- 23 -

CCA 60498/02
DC 01/21/3201

SANTOW JA
SIMPSON J
SMART AJ

4 MARCH 2003

REGINA v Disho SLEWA

Judgment

1 SANTOW JA:

INTRODUCTION AND OVERVIEW

2 On Friday 17 November 2000 at around 10pm, the Complainant ME, then 17 years old, left her boyfriend’s house in Smithfield following a quarrel with him. She commenced walking to her father’s home some two hours away. As she was walking a red two door hatchback car approached and the driver offered her a lift. She accepted. The driver grabbed her arm when she got into the car. He touched her leg, she brushed him off. He then drove her to a deserted street. She asked to go and he locked the car. The offender then assaulted her and had sexual intercourse without her consent.

3 Eventually she freed herself and she memorised the numberplate of the vehicle as KWA-470. She hid in a front yard of a home and after she was calmed down the occupier of the home drove her to her boyfriend’s. She showered and then told him what had happened. The next day she told her father and then she reported the incident to police.

4 The police searched the numberplate and found no car with that numberplate matching her description. A search on an alternate numberplate of WKA-470 revealed a…

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.

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Details

Case: [2003] NSWCCA 50
Decision Date: 4 March 2003

CaseChat Overview and Summary

In the case of R v Slewa, the appellant was convicted of sexual assault and appealed the conviction. The respondent, the Crown, argued against the appeal. The High Court of Australia was asked to review the decision. The central issue before the court was whether the jury's verdict was unreasonable and unsupported by evidence. The court also had to consider if there was a reasonable doubt as to the appellant's guilt. Another concern was whether the trial miscarried due to the absence of a separate direction on lies, even though counsel for the offender did not seek such a direction. Additionally, the court examined whether the lack of an explicit direction on the need for the jury to be satisfied of guilt beyond reasonable doubt of an essential factual element resulted in a miscarriage of justice.

The court examined the principles of criminal appeals and the role of the jury in determining guilt. The court noted that the jury's verdict should not be disturbed if it is open on the evidence, even if the court would have reached a different conclusion. The court also emphasised the importance of a trial being fair and free from any misdirection or omission that might prejudice the accused. The court found that the jury's verdict was open on the evidence, and there was no reasonable doubt as to the appellant's guilt. Furthermore, the court held that the absence of a separate direction on lies did not result in a miscarriage of justice, as counsel for the offender had not sought such a direction. The court also concluded that the lack of an explicit direction on the need for the jury to be satisfied of guilt beyond reasonable doubt of an essential factual element did not result in a miscarriage of justice, as the jury was adequately directed on the principles of criminal liability.

The High Court of Australia dismissed the appeal, affirming the conviction. The court held that the jury's verdict was open on the evidence and there was no reasonable doubt as to the appellant's guilt. The court also found that the absence of a separate direction on lies did not result in a miscarriage of justice, as counsel for the offender had not sought such a direction. The court concluded that the lack of an explicit direction on the need for the jury to be satisfied of guilt beyond reasonable doubt of an essential factual element did not result in a miscarriage of justice, as the jury was adequately directed on the principles of criminal liability. Consequently, the conviction of the appellant was upheld.

Orders