FOGGO v REGINA [2007] NSWCCA 364

FOGGO v REGINA [2007] NSWCCA 364

By majority, the Court held that although the trial judge should have permitted the complainant to be cross-examined about his actual response in the listening device conversation, and although some Crown questions to the appellant were improper, those errors did not cause a substantial miscarriage of justice or make the trial unfair. The jury heard the tape, the defence explored why the complainant did not dispute the statement about consenting adults, the improper questions were isolated, and the appellant was able fairly to present his case. The verdicts were open on the evidence, so the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
21 December 2007
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeal dismissed
Legal Topics
['sexual Intercourse Without Consent' 'indecent Assault' 'consent' 'cross Examination' 'listening Device Evidence' 'improper Cross Examination' 'unreasonable or Unsupported Verdict' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Intercourse Without Consent' 'indecent Assault' 'consent' 'cross Examination' 'listening Device Evidence' 'improper Cross Examination' 'unreasonable or Unsupported Verdict' 'miscarriage of Justice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in restricting cross-examination of the complainant about his actual response in an intercepted listening device conversation to the appellant's statement about consenting adults." 'Whether any restriction on cross-examination caused a substantial miscarriage of justice.' 'Whether the trial judge erred in permitting improper cross-examination of the appellant by the Crown.' 'Whether any improper cross-examination caused the trial to miscarry due to unfairness.' 'Whether the verdicts were unreasonable or could not be supported having regard to the evidence.']

Ratio Decidendi

By majority, the Court held that although the trial judge should have permitted the complainant to be cross-examined about his actual response in the listening device conversation, and although some Crown questions to the appellant were improper, those errors did not cause a substantial miscarriage of justice or make the trial unfair. The jury heard the tape, the defence explored why the complainant did not dispute the statement about consenting adults, the improper questions were isolated, and the appellant was able fairly to present his case. The verdicts were open on the evidence, so the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']