GAR v R (No 1) [2010] NSWCCA 163

GAR v R (No 1) [2010] NSWCCA 163

The appeal failed because the Court did not accept E's recantation and related evidence as cogent, credible or plausible. ER's evidence at trial and on appeal was credible and cogent, and was supported by complaint evidence, E's observation of ER's distress, and medical evidence consistent with ER's account. Even assuming E's impugned corroborative evidence were excluded, the fresh evidence was not likely to have caused the jury to entertain a reasonable doubt and did not create a significant possibility that a reasonable jury would have acquitted.

Jurisdiction
Australia
Judgment Date
05 August 2010
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Following Referral to the Court of Criminal Appeal Under Part 7 of the Crimes (appeal and Review) Act 2001
Outcome
Leave to appeal granted; appeal against conviction dismissed.
Legal Topics
['conviction Appeal' 'fresh Evidence' 'sexual Assault' 'witness Recantation' 'miscarriage of Justice' 'credibility and Cogency of Evidence']
['criminal Law' 'evidence' 'appellate Procedure'] ['conviction Appeal' 'fresh Evidence' 'sexual Assault' 'witness Recantation' 'miscarriage of Justice' 'credibility and Cogency of Evidence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Following Referral to the Court of Criminal Appeal Under Part 7 of the Crimes (appeal and Review) Act 2001

Legal Issues

  1. 1 ['Whether the appellant required leave to appeal where the matter had been referred under s 79(1) of the Crimes (Appeal and Review) Act 2001 to be dealt with as an appeal under the Criminal Appeal Act 1912.' 'Whether the fresh evidence that E had lied at trial was credible, capable of belief or plausible.' "Whether the fresh evidence was so cogent that the Court would be satisfied of the appellant's innocence or would entertain a reasonable doubt as to guilt." 'Whether the fresh evidence, in the context of the trial evidence, was likely to have caused the jury to entertain a reasonable doubt or gave rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant.']

Ratio Decidendi

The appeal failed because the Court did not accept E's recantation and related evidence as cogent, credible or plausible. ER's evidence at trial and on appeal was credible and cogent, and was supported by complaint evidence, E's observation of ER's distress, and medical evidence consistent with ER's account. Even assuming E's impugned corroborative evidence were excluded, the fresh evidence was not likely to have caused the jury to entertain a reasonable doubt and did not create a significant possibility that a reasonable jury would have acquitted.

Court Disposition

Leave to appeal granted; appeal against conviction dismissed.

Orders

  • ['Grant leave to appeal.' "The appellant's appeal against his conviction is dismissed."]