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Ross v The Queen

Ross v The Queen

Case [2012] NSWCCA 207 26 September 2012

Appeal

Admissibility of Evidence

Jury Instructions

Inconsistent Verdicts

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ROSS, James John v R [2012] NSWCCA 207
Hearing dates: 29 May 2012
Decision date: 26 September 2012
Before: Allsop P at [1]
Hidden J at [69]
Davies J at [70]
Decision:
1.Extend time for the filing of a notice of appeal to the date of the filing of the notice of appeal herein.
2.Appeal against conviction dismissed.

Catchwords:
CRIMINAL LAW - appeal against conviction - appellant convicted on 24 counts of sexual offences - appellant charged jointly or severally with complainant's mother - appellant and complainant's mother tried together - clear directions given by trial judge about use of evidence - no miscarriage of justice in joint trial

CRIMINAL LAW - appeal against conviction - evidence - admission of record of interview - trial judge declined to exclude parts of interview to which appellant answered "no comment" - trial judge declined to exclude evidence of medical examination - evidence not prejudicial or irrelevant - clear directions given by trial judge - no miscarriage of justice
CRIMINAL LAW - appeal against conviction - inconsistent verdicts - appellant acquitted on two counts at trial - evidence on all counts primarily that of complainant - acquittal on two counts not necessarily indicative of doubts about complainant's overall veracity - jury properly instructed - sound possible evidential bases for acquittal on two counts and conviction on 24 other counts - verdicts not inconsistent
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: DD v R [2010] NSWCCA 237
Demirok v R [1977] HCA 21; 137 CLR 20
Dungay v R [2010] NSWCCA 82
Gilbert v R [2000] HCA 15; 201 CLR 414
Jones v R [1997] HCA 56; 191 CLR 439
MFA v R [2002] HCA 53; 213 CLR 606
R v Baartman (NSW Court of Criminal Appeal, 6 October 1994, unreported)
R v Dellapatrona (1993) 31 NSWLR 123
R v Demirok [1976] VR 244
R v Fernando [1999] NSWCCA 66
R v Harbach (1973) 6 SASR 427
R v Middis (Supreme Court of NSW, 27 March 1991, unreported)
R v Murray (1987) 11 NSWLR 12
R v Plevac (1995) 84 A Crim R 570
R v Reeves (1992) 29 NSWLR 109
R v Skaf [2004] NSWCCA 74
TK v R [2009] NSWCCA 151; 74 NSWLR 299
Webb and Hay v R [1994] HCA 30; 181 CLR 41
Category: Principal judgment
Parties: James John Ross (Appellant)
Regina (Respondent)
Representation: G Corr (Appellant)
J Girdham (Respondent)
O'Briens Solicitors (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/5243
Decision under appeal

Date of Decision:

2010-06-11 00:00:00

Before:

Woods DCJ

File Number(s):

2008/11/1024

Judgment

ALLSOP P: This is an appeal by Mr Ross under the Criminal Appeal Act 1912 (NSW), s 5(1), against convictions on 24 counts of sexual offences after a jury trial concluding on 9 November 2009.

Sentence was passed on 11 June 2010. The notice of appeal…

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 Ross v The Queen

Details

AGLC: Ross v R [2012] NSWCCA 207
Case: [2012] NSWCCA 207
Decision Date: 26 September 2012

CaseChat Overview and Summary

In the case of Ross v The Queen, the appellant was convicted on 24 counts of sexual offences, with the complainant's mother charged jointly or severally with the appellant. The appellant's appeal against conviction was based on several grounds, including the fairness of the joint trial, the admission of certain evidence, and the consistency of the verdicts. The High Court of Australia was tasked with determining the validity of these appeals.

The primary legal issues addressed by the court involved the admissibility of the evidence presented, the fairness of the joint trial, and the consistency of the jury's verdicts. The appellant argued that the trial judge's directions to the jury regarding the evidence were inadequate, leading to a miscarriage of justice. The court also had to consider whether the evidence, particularly the record of the interview and the medical examination, was prejudicial or irrelevant, and whether the acquittal on two counts indicated a doubt about the complainant's overall veracity.

The court held that the trial judge had given clear directions to the jury, which were sufficient to ensure a fair trial. The evidence, including the record of the interview and the medical examination, was deemed not to be prejudicial or irrelevant, as it was relevant to the case and did not lead to a miscarriage of justice. The court further concluded that the acquittal on two counts did not necessarily indicate doubts about the complainant's overall veracity, as there were sound evidential bases for the acquittals and convictions. The jury's verdicts were found to be consistent and properly instructed.

The final orders of the court were to dismiss the appeal against conviction, affirming the decisions of the lower courts. The appellant's conviction on 24 counts of sexual offences was upheld, and the court found no miscarriage of justice in the proceedings.

Orders