Giotas v R [2008] NSWCCA 287

Giotas v R [2008] NSWCCA 287

The conviction appeal failed because no material prejudice or error was shown in refusing to discharge the jury over Dr Larsen's conversation, the delay direction was adequate, the refusal to recall the complainant or discharge the jury concerning the civil claim was within discretion, and the guilty verdicts were open beyond reasonable doubt on the whole of the evidence. The sentence appeal succeeded because the evidence before the second sentencing judge was not significantly different from that before the first, the earlier sentences were within the available range and not manifestly inadequate, and there was no sufficiently special or significant matter to overcome the prima facie...

Jurisdiction
Australia
Judgment Date
05 December 2008
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Application for Leave to Appeal Against Sentence From District Court Retrial
Outcome
Appeal against convictions dismissed; leave to appeal against sentences granted; appeal against sentences allowed; sentences quashed and substituted.
Legal Topics
['sexual Intercourse Without Consent' 'jury Discharge' 'longman Direction' 'unreasonable Verdict' 'sentence After Retrial' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['sexual Intercourse Without Consent' 'jury Discharge' 'longman Direction' 'unreasonable Verdict' 'sentence After Retrial' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Convictions and Application for Leave to Appeal Against Sentence From District Court Retrial

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing to discharge the jury and allowing the evidence of Dr Larsen after she had spoken with the officer in charge.' 'Whether the trial judge erred in failing to give a Longman direction in relation to possible witnesses at the hotel and Salvation Army.' 'Whether the trial judge erred in refusing to require the complainant to be made available for further cross-examination and in refusing to discharge the jury after evidence concerning her civil claim.' 'Whether the guilty verdicts were unreasonable or could not be supported by the evidence.' 'Whether the sentencing judge erred by imposing sentences greater than those imposed after the first trial.']

Ratio Decidendi

The conviction appeal failed because no material prejudice or error was shown in refusing to discharge the jury over Dr Larsen's conversation, the delay direction was adequate, the refusal to recall the complainant or discharge the jury concerning the civil claim was within discretion, and the guilty verdicts were open beyond reasonable doubt on the whole of the evidence. The sentence appeal succeeded because the evidence before the second sentencing judge was not significantly different from that before the first, the earlier sentences were within the available range and not manifestly inadequate, and there was no sufficiently special or significant matter to overcome the prima facie...

Court Disposition

Appeal against convictions dismissed; leave to appeal against sentences granted; appeal against sentences allowed; sentences quashed and substituted.

Orders

  • ['Appeal against convictions dismissed.' 'Leave to appeal against sentences granted.' 'Appeal against sentences allowed.' 'Quash the sentences and in lieu thereof on each count sentence the appellant to imprisonment for a non parole period of 2 years 3 months to commence on 29 July 2005 and to expire on 28 October...