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Regina v Folli

Regina v Folli

Case [2001] NSWCCA 531 19 December 2001

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CITATION: REGINA v FOLLI [2001] NSWCCA 531

FILE NUMBER(S): CCA 60033/01

HEARING DATE(S): 7 December 2001

JUDGMENT DATE:
19 December 2001

PARTIES :

REGINA v Michael FOLLI

JUDGMENT OF: Mason P at 1; Sperling J at 29; McClellan J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/2160

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : Appellant: H Dhanji
Crown: R Ellis

SOLICITORS: Appellant: Beston Macken McManis
Crown: S O'Connor

CATCHWORDS: Criminal Law - Appeal against conviction - Leave to appeal against sentence - indecent assault - sexual intercourse without consent - complainants brothers - over 17 year delay in complaint - Longman warning required rather than mere comment on delay - cannot be said conviction inevitable - direction fundamentally flawed - new trial.

CASES CITED:
Longman v The Queen (1989) 168 CLR 79
Crofts v The Queen (1996) 186 CLR 427
The Queen v Johnston (1998) 45 NSWLR 362
Crampton v The Queen (2000) 75 ALJR 133
Doggett v The Queen (2001) 75 ALJR 1290
R v GPP [2001] NSWCCA 493

DECISION: Appeal allowed, Conviction and sentence set aside, new trial ordered

CCA 60033/01
MASON P
SPERLING J
MCCLELLAN J

Wednesday 19 December 2001

REGINA v Michael FOLLI

JUDGMENT

The appellant appeals against conviction and seeks leave to appeal against sentence. He was tried in the District Court in November 2000 before Judge Gibson and a jury. The indictment charged certain counts in the alternative. Since, however the appellant was convicted on all of the primary charges it is sufficient if they are set out:

Crimes Act

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 Regina v Folli

Details

AGLC: REGINA v Folli [2001] NSWCCA 531
Case: [2001] NSWCCA 531
Decision Date: 19 December 2001

CaseChat Overview and Summary

Regina v Folli is an appeal against conviction where the appellant, Folli, had been found guilty of indecent assault and sexual intercourse without consent. The case was heard in the court of appeal. The complainants in the case were the brothers of the victims, and the crux of the appeal was the substantial delay of over 17 years in the reporting of the incidents. The appellant argued that the delay necessitated a more robust warning, akin to the Longman warning, rather than the mere comment made by the trial judge about the delay.

The central legal issue for the court to decide was whether the trial judge's handling of the delay in reporting was adequate and whether it impacted the safety of the appellant's conviction. The court was required to determine if the trial judge's direction on the issue was fundamentally flawed, potentially affecting the fairness of the trial. The appeal hinged on whether the delay was so significant that it required a specific warning to the jury, similar to that in Longman v R, rather than a simple comment.

In addressing these issues, the court found that the trial judge's approach to the delay was inadequate. The court determined that a Longman warning, which provides a more detailed instruction to the jury about the implications of a long delay in reporting, was necessary rather than a mere comment. The court concluded that this fundamental flaw in the direction given to the jury meant that the conviction could not be said to be safe. Consequently, the appeal was allowed, and the convictions were quashed. The court ordered a new trial to be conducted, ensuring that the jury was properly directed on the issue of delay in reporting.

Orders