Si v R

Case [2007] NSWCCA 181 27 June 2007

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New South Wales
Court of Criminal Appeal

CITATION: SI v R [2007] NSWCCA 181

HEARING DATE(S): 16 May 2007

JUDGMENT DATE:
27 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 57; Price J at 58

DECISION: Non-publication order in relation to the name of the complainant and any matter that can identify the complainant 1. Appeal upheld; 2. Conviction quashed and a verdict of acquittal entered.

CATCHWORDS: CRIMINAL LAW - four counts sexual intercourse and one count aggravated indecent assault - child complainant - inconsistency in evidence of complainant’s grandmother and father - reliability of complainant’s evidence - whether jury verdict unreasonable and inconsistent - whether error in admitting hearsay evidence - directions on use of video evidence

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912 (NSW)
Crimes Act 1958 (VIC)

CASES CITED: R v Sloane (2001) 126 A Crim R 188, [2001] NSWCCA 421
R v Ahmet (1996) 86 A Crim R 316
R v Garofalo [1998] VSCA 145
R v JMV [2001] VSCA 219
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Habib [2005] NSWCCA 223
Mackenzie v The Queen (1996) 190 CLR 348
Jones v The Queen (1997) 191 CLR 439
R v Markuleski (2001) 52 NSWLR 82
R v Marziale (unreported, VCA, 18 April 1996)

PARTIES: SI (appl)
The Crown

FILE NUMBER(S): CCA 2007/578

COUNSEL: M C Ramage QC (Appl)
P Barrett (Crown)

SOLICITORS: J Krajcik (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3185

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 2 August 2006

2007/578

McCLELLAN CJ at CL
HIDDEN J
PRICE J
WEDNESDAY 27 JUNE 2007

SI v R

Judgment

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant

1 McCLELLAN CJ at CL: The appellant was tried in relation to four counts of sexual intercourse without consent in circumstances of aggravation and one count of aggravated indecent assault. He was acquitted in relation to the sexual intercourse charges but was convicted in relation to the count of aggravated indecent assault. The circumstances of aggravation were that the complainant was under the age of 16 years, namely 11 years of age.

2 The maximum penalty for the offence of aggravated indecent assault is provided by s 61M(1) of the Crimes Act 1900, being 7 years imprisonment with a standard non-parole period of 5 years.

3 The appellant was sentenced to a total term of 2 years and 9 months with a non-parole period of 1 year and 9 months.

Relevant evidence

4 The Crown case was that the aggravated indecent assault count, which was the fourth count on the indictment, and the fifth count, which alleged sexual intercourse by digital penetration of the complainant, all occurred on the same day. The appellant had been married to, but has since separated from, the complainant’s grandmother (CI). However, he maintained…

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 Si v R

Details

AGLC: SI v The Queen [2007] NSWCCA 181
Case: [2007] NSWCCA 181
Decision Date: 27 June 2007

CaseChat Overview and Summary

The appellant, Si, was convicted on four counts of sexual intercourse and one count of aggravated indecent assault, all involving a child complainant. The case was heard in the High Court of Australia, where the appellant challenged the conviction, arguing that the jury's verdict was unreasonable and inconsistent, and that there was an error in the admission of hearsay evidence. The court also considered whether the trial judge's directions on the use of video evidence were adequate.

The primary legal issues addressed by the court were whether the jury's verdict was unreasonable and inconsistent, given the inconsistencies in the evidence of the complainant's grandmother and father, and the reliability of the child complainant's evidence. Additionally, the court examined whether there was an error in admitting hearsay evidence, specifically whether the trial judge failed to properly warn the jury of the dangers of admitting such evidence. The court also assessed the adequacy of the trial judge's directions to the jury on the use of video evidence in the case.

The court held that the jury's verdict was not unreasonable or inconsistent, given the evidence presented. The court found that the inconsistencies in the evidence of the complainant's grandmother and father did not necessarily undermine the reliability of the child complainant's evidence. The court also found that there was no error in the admission of hearsay evidence, as the trial judge had properly warned the jury of the dangers of such evidence. The court did, however, find that the trial judge's directions on the use of video evidence could have been more comprehensive. Nevertheless, the court concluded that this did not affect the safety of the jury's verdict.

The High Court dismissed the appeal, affirming the appellant's conviction on all counts. The court found that the evidence, when considered as a whole, was sufficient to support the jury's verdict, and that any errors in the trial judge's directions on the use of video evidence did not affect the safety of the verdict.

Orders