Legal Research
Cases
Still v R

Still v R

Case [2010] NSWCCA 131 23 June 2010

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Still v R [2010] NSWCCA 131

HEARING DATE(S): 3 May 2010

JUDGMENT DATE:
23 June 2010

JUDGMENT OF: Basten JA at 1; Johnson J at 2; Rothman J at 96

DECISION: Leave to appeal granted in relation to Grounds 1, 2 and 4. Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW - conviction appeal - appellant a taxi driver charged with sexual and stealing offences against female passenger - jury acquits of aggravated detain for advantage and convicts of indecent assault and stealing - whether inconsistent verdicts - inconsistency not established - whether no case to answer on indecent assault count - held there was a case to answer - whether conviction for indecent assault unreasonable and not supported by evidence - ground not established - appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v EJ Smith [1982] 2 NSWLR 608
R v Ion (1996) 89 A Crim R 81
Rasic v R [2009] NSWCCA 202
R v R (1989) 18 NSWLR 74
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220
Dungay v R [2010] NSWCCA 82
Jovanovksi v Director of Public Prosecutions (NSW) [2009] NSWCCA 284
R v TK [2009] NSWCCA 151; 74 NSWLR 299
R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
R v Sorlie (1925) 25 SR 532
Fitzgerald v Kennard (1995) 3 NSWLR 184
Toalepai v R [2009] NSWCCA 270

PARTIES: Cory Edward Still (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/17564

COUNSEL: Mr PD Rosser (Appellant)
Ms J Dwyer (Respondent)

SOLICITORS: Harris Wheeler Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/17564

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 16 October 2009 (on sentence)

2008/17564

BASTEN JA
JOHNSON J
ROTHMAN J
23 June 2010

STILL v REGINA

Judgment

1 BASTEN JA: I agree with the orders proposed by Johnson J and with his Honour’s reasons.

: The Appellant, Cory Edward Still, appeals against his conviction at the Newcastle District Court on 11 September 2009 upon a charge of indecent assault under s.61L Crimes Act 1900, an offence punishable by a maximum term of five years’ imprisonment.

Proceedings in the District Court

3 On 7 September 2009, the trial of the Appellant commenced before Hock DCJ and a jury following the entry of pleas of not guilty to the following charges:

(a) Count 1 - on 22 March 2008 at Adamstown Heights, the Appellant, without consent, detained KG with intent to obtain an advantage, and at the time of the offence, actual bodily harm was occasioned to KG (aggravated detain for advantage under s.86(2)(b) Crimes Act 1900 );

(b) Count 2 - on 22 March 2008 at Adamstown Heights, the Appellant assaulted KG and, at the time of the assault, did commit an act of indecency upon her (indecent assault under s.61L Crimes Act 1900 );

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 Still v R

Details

AGLC: Still v R [2010] NSWCCA 131
Case: [2010] NSWCCA 131
Decision Date: 23 June 2010

CaseChat Overview and Summary

The appellant, a taxi driver, was charged with sexual and stealing offences against a female passenger. Following a trial, the jury acquitted the appellant of aggravated detain for advantage but convicted him of indecent assault and stealing. The appellant appealed against his conviction, arguing that the verdicts were inconsistent, that there was no case to answer on the indecent assault count, and that the conviction for indecent assault was unreasonable and not supported by the evidence. The court had to determine whether the verdicts were inconsistent, whether there was a case to answer on the indecent assault count, and whether the conviction for indecent assault was unreasonable and not supported by the evidence.

The court held that the inconsistency between the verdicts was not established. The jury was entitled to believe that the appellant had indecently assaulted the passenger and yet had not detained her for an advantage. The court also held that there was a case to answer on the indecent assault count. The evidence showed that the appellant had touched the passenger in an indecent manner, and it was open to the jury to find that this amounted to an indecent assault. Finally, the court held that the conviction for indecent assault was not unreasonable and was supported by the evidence. The evidence showed that the appellant had touched the passenger in an indecent manner, and it was open to the jury to find that this amounted to an indecent assault.

The appeal was dismissed. The court held that the verdicts were not inconsistent, that there was a case to answer on the indecent assault count, and that the conviction for indecent assault was reasonable and supported by the evidence. The court found no merit in the appellant's grounds of appeal and dismissed the appeal.

Orders