R v Arbolino [2001] NSWCCA 207

R v Arbolino [2001] NSWCCA 207

The trial judge's direction wrongly allowed the jury to treat the appellant's failure to testify as a basis for more readily accepting Crown evidence. The Court could not accept that the jury would have confined the direction only to the complainant's evidence, because it may also have been understood as applying to DG's evidence. The appellant therefore made out the second ground of appeal, requiring the conviction to be quashed and a new trial ordered.

Jurisdiction
Australia
Judgment Date
08 May 2001
Procedural Posture
Criminal Appeal Against Conviction / Appeal in the New South Wales Court of Criminal Appeal From Conviction in the District Court
Outcome
Appeal upheld, conviction quashed and a new trial ordered.
Legal Topics
['sexual Assault' 'act of Indecency' 'onus of Proof' 'accused Not Testifying' 'jury Directions']
['criminal Law' 'criminal Procedure'] ['sexual Assault' 'act of Indecency' 'onus of Proof' 'accused Not Testifying' 'jury Directions']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the trial judge erred in directing the jury about the appellant's election not to testify." 'Whether the erroneous direction required the conviction to be quashed and a new trial ordered.' 'Whether the trial judge erred in directions concerning the danger of convicting on the evidence of the complainant.']

Ratio Decidendi

The trial judge's direction wrongly allowed the jury to treat the appellant's failure to testify as a basis for more readily accepting Crown evidence. The Court could not accept that the jury would have confined the direction only to the complainant's evidence, because it may also have been understood as applying to DG's evidence. The appellant therefore made out the second ground of appeal, requiring the conviction to be quashed and a new trial ordered.

Court Disposition

Appeal upheld, conviction quashed and a new trial ordered.

Orders

  • ['The appeal is upheld.' 'The conviction is quashed.' 'A new trial is ordered.']