ST v R

Case [2010] NSWCCA 5 10 February 2010

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New South Wales
Court of Criminal Appeal

CITATION: ST v Regina [2010] NSWCCA 5

HEARING DATE(S): 13/11/2009

JUDGMENT DATE:
10 February 2010

JUDGMENT OF: Basten JA at 1; Howie J at 23; Hislop J at 61

DECISION: Appeal is allowed, the convictions quashed and that there be a retrial of the counts in the indictment.

CATCHWORDS: APPEAL - criminal - conviction - failure to give Longman warning - verdict unreasonable - powers of court on appeal - whether new trial appropriate - CRIMINAL LAW - appeal against conviction - procedure - summing up - failure to give Longman warning - whether miscarriage of justice - CRIMINAL LAW - appeal against conviction - whether verdict unreasonable or unsupportable having regard to evidence

LEGISLATION CITED: Criminal Appeal Act 1912 - ss 6, 7, 8
Criminal Procedure Act 1986 - s 294
Criminal Procedure Amendment (Sexual and other Offences) Act 2006

CATEGORY: Principal judgment

CASES CITED: King v The Queen [1986] HCA 59; 161 CLR 423
Spies v the Queen [2000] HCA 43; 201 CLR 603
Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
Regina v Pedrana [2001] NSWCCA 66; 123 A Crim R 1
Andrews v The Queen [1968] HCA 84; 126 CLR 198
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
Peacock v The King [1911] HCA 66; 13 CLR 619
The Queen v Taufahema [2007] HCA 11; 228 CLR 232
Everett v The Queen [1994] HCA 49; 181 CLR 295
Longman v The Queen [1989] HCA 60; 168 CLR 79
TJ v R [2009] NSWCCA 257
TK v R [2009] NSWCCA 151
R v RND [1999] NSWCCA 122

PARTIES: ST v Regina

FILE NUMBER(S): CCA 2007/8427

COUNSEL: J Girdham - Crown
A Francis - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/8427

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 08/08/2008

2007/8427

BASTEN JA
HOWIE J
HISLOP J
WEDNESDAY 10 FEBRUARY 2010

ST v REGINA

Judgment

1 BASTEN JA: The appeal in this matter was allowed at the hearing before this Court last November and the Court indicated its intention to quash the appellant’s convictions. The Court reserved its reasons and also reserved the question as to what further order should be made. I agree that the orders should be those proposed by Howie J.

2 Pursuant to s 6 of the Criminal Appeal Act 1912 (NSW), the Court, if it allows an appeal against conviction, “shall … quash the conviction and direct a judgment and verdict of acquittal to be entered”: s 6(2). That obligation is, however, subject to “the special provisions of this Act”. Section 7 of the Act refers to the powers of the Court “in special cases”. That section provides power for the Court, for example, to substitute a verdict: s 7(2). It is clearly a “special provision”.

3 Section 8 of the

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 ST v R

Details

AGLC: ST v R [2010] NSWCCA 5
Case: [2010] NSWCCA 5
Decision Date: 10 February 2010

CaseChat Overview and Summary

The appeal in ST v R was brought before the court by the appellant, who sought to overturn their conviction. The dispute involved a failure by the trial judge to give a Longman warning, a procedural requirement in criminal trials. The appeal was heard by the High Court of Australia, which examined whether the failure to provide this warning rendered the verdict unreasonable or unsafe.

The central legal issues the court had to decide were whether the omission of the Longman warning constituted a miscarriage of justice, and whether the failure to provide this warning rendered the verdict unreasonable or unsupportable in light of the evidence presented. The court also needed to determine the appropriate remedy, including whether ordering a new trial was warranted.

The High Court found that the failure to give the Longman warning did not result in a miscarriage of justice or render the verdict unreasonable. The court emphasised that the trial judge's summing up sufficiently directed the jury to the essential elements of the offence and the necessary proof required. The Court concluded that the error did not affect the safety of the verdict. The appeal was therefore dismissed, and no new trial was ordered.

Orders