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Shiv v The Queen

Shiv v The Queen

Case [2021] NSWCCA 245 13 October 2021

Appeal

Criminal Liability

Unreasonable Verdict

Inconsistent Verdicts

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Shiv v R [2021] NSWCCA 245
Hearing dates: 1 September 2021, further submissions 14, 15 September 2021
Decision date: 13 October 2021
Before: Leeming JA at [1];
Hamill J at [144];
Lonergan J at [150].
Decision:
1. Grant leave to appeal confined to ground 1 of the notice of appeal.
2. Appeal allowed.
3. Quash the conviction on count 2 entered on 4 August 2020 and in lieu thereof enter a verdict of acquittal on count 2.

Catchwords:
CRIMINAL LAW – appeal against conviction – unreasonable verdict – inconsistent verdicts – whether guilty verdict on count 2 irreconcilable with not guilty verdicts on counts 1, 4, 5 and 6 – applicant charged with three counts of indecent assault and two counts of sexual intercourse without consent – all events occurred on same evening and upon the same complainant – complainant made almost immediate complaints of counts 1, 4, 5 and 6 – complainant’s initial complaints did not refer to count 2 – basis for reconciling conviction on count 2 and not guilty verdicts on indecent assault counts – whether different verdicts on counts of sexual intercourse without consent reconcilable – complainant gave unequivocal testimonial evidence of both counts of sexual intercourse without consent – no apparent distinction between quality of complainant’s evidence on counts 2 and 4 – no other witnesses – no other evidence capable of reconciling not guilty verdict on count 4 with guilty verdict on count 2 – appeal allowed and conviction quashed

Legislation Cited:
Bail Act 2013 (NSW), s 22
COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
Crimes Act 1900 (NSW), ss 61H, 61I, 61L, 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Procedure Act 1986 (NSW), s 356
Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases Cited:
AH v R [2019] NSWCCA 152
Burrell v R [2009] NSWCCA 193
Caleo v R [2021] NSWCCA 179
Dellow v R [2020] NSWCCA 301
Ganiji v R [2019] NSWCA 208
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
Kurdi v R [2011] NSWCCA 179
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA vThe Queen (2002) 213 CLR 606; [2002] HCA 53
Nguyen v R [2021] NSWCCA 85
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Roos v R [2019] NSWCCA 67
Shi v R [2020] NSWCCA 258
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
White v R [2019] NSWCCA 168
Youkhanis v R [2014] NSWCCA 220

Category: Principal judgment
Parties: Balram Shiv (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
H Roberts (Respondent)
Solicitors:
James & Jaramillo (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00151492
Publication restriction: The complainant may not be identified by reason of Crimes Act 1900 (NSW),…

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 Shiv v The Queen

Details

AGLC: Shiv v The Queen [2021] NSWCCA 245
Case: [2021] NSWCCA 245
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of Shiv v The Queen involved an appeal against the applicant's conviction by the High Court of Australia. The applicant was charged with multiple counts of indecent assault and sexual intercourse without consent, all of which were alleged to have occurred on the same evening involving the same complainant. The jury returned guilty verdicts on count 2, while acquitting the applicant on counts 1, 4, 5, and 6. The central issue for the court was whether the guilty verdict on count 2 could be reconciled with the not guilty verdicts on counts 1, 4, 5, and 6, given the complainant's immediate complaints about the former but not the latter.

The court examined the nature of the offences and the evidence presented. The complainant had given immediate complaints about counts 1, 4, 5, and 6, but did not mention count 2 initially. The court considered whether the verdict on count 2 could be made consistent with the not guilty verdicts on counts 1, 4, 5, and 6. The court noted that the complainant provided unequivocal testimony about the counts of sexual intercourse without consent, with no discernible difference in the quality of evidence for counts 2 and 4. The absence of other witnesses or evidence made it difficult to justify the guilty verdict on count 2 while acquitting on count 4.

The High Court concluded that the verdict on count 2 was irreconcilable with the not guilty verdicts on counts 1, 4, 5, and 6. The court found that the basis provided for reconciling these inconsistent verdicts was insufficient. Consequently, the appeal was allowed, and the conviction on count 2 was quashed. The court's decision underscored the importance of consistency in jury verdicts and the necessity for a rational basis to reconcile seemingly contradictory findings.

Orders