R v HOUSSEIN [2003] NSWCCA 74

R v HOUSSEIN [2003] NSWCCA 74

The conviction appeal was allowed because the trial judge wrongly permitted the Crown to cross-examine the appellant about an apprehended violence order obtained by his mother. The evidence was not relevant to the appellant's credibility or to any issue in the proceedings, and even if it had some relevance its probative value was slight and its unfairly prejudicial potential was great in a case alleging serious violence against his brother. The mandatory considerations under s192, and probably s137, were not properly addressed. The proviso to s6 of the Criminal Appeal Act could not be applied because the wrongly admitted AVO evidence was calculated to create substantial prejudice against...

Jurisdiction
Australia
Judgment Date
28 March 2003
Procedural Posture
Criminal Appeal / Appeal to the New South Wales Court of Criminal Appeal From Conviction and Sentence in the District Court; Leave to Appeal Against Sentence Was Sought But Not Considered Because the Conviction Appeal Was Allowed.
Outcome
Appeal allowed; conviction and sentence quashed; new trial ordered subject to the discretion of the Director of Public Prosecutions.
Legal Topics
['malicious Infliction of Grievous Bodily Harm' 'alternative Verdict Under Ss34 and 35 of the Crimes Act' 'jury Directions' 'self Defence' 'prior Consistent Statement in Re Examination' 'cross Examination of Accused About Apprehended Violence Order' 'credibility Evidence' 'proviso to S6 of the Criminal Appeal Act' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['malicious Infliction of Grievous Bodily Harm' 'alternative Verdict Under Ss34 and 35 of the Crimes Act' 'jury Directions' 'self Defence' 'prior Consistent Statement in Re Examination' 'cross Examination of Accused About Apprehended Violence Order' 'credibility Evidence' 'proviso to S6 of the Criminal Appeal Act' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal to the New South Wales Court of Criminal Appeal From Conviction and Sentence in the District Court; Leave to Appeal Against Sentence Was Sought But Not Considered Because the Conviction Appeal Was Allowed.

Legal Issues

  1. 1 ['Whether the appellant was convicted of an offence not known to law because of the formulation of the alternative charge.' "Whether the trial judge's directions on the alternative charge, intent and self-defence caused a miscarriage of justice." 'Whether references to the accused\'s "guilt or innocence" constituted appealable error.' 'Whether the Crown was wrongly permitted to re-examine Peterson by reference to his prior statement.' "Whether the jury required a direction about the use of Peterson's prior statement." 'Whether the Crown should have been granted leave to cross-examine the appellant about an apprehended violence order obtained by his mother.' 'Whether the proviso to s6 of the Criminal Appeal Act should be applied.' 'Whether a new trial should be ordered.']

Ratio Decidendi

The conviction appeal was allowed because the trial judge wrongly permitted the Crown to cross-examine the appellant about an apprehended violence order obtained by his mother. The evidence was not relevant to the appellant's credibility or to any issue in the proceedings, and even if it had some relevance its probative value was slight and its unfairly prejudicial potential was great in a case alleging serious violence against his brother. The mandatory considerations under s192, and probably s137, were not properly addressed. The proviso to s6 of the Criminal Appeal Act could not be applied because the wrongly admitted AVO evidence was calculated to create substantial prejudice against...

Court Disposition

Appeal allowed; conviction and sentence quashed; new trial ordered subject to the discretion of the Director of Public Prosecutions.

Orders

  • ['Appeal allowed.' 'The conviction of the Appellant before Judge Gibson on 12 April 2002 and the sentence imposed on 14 June 2002 by her Honour are quashed.' 'Subject to the discretion of the Director of Public Prosecutions, there should be a new trial.']