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Balachandran v The Queen

Balachandran v The Queen

Case [2020] NSWCCA 12 12 February 2020

Appeal

Unreasonable Verdict

Admissibility of Evidence

Miscarriage of Justice

Contempt of Court

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Balachandran v R [2020] NSWCCA 12
Hearing dates: 16 and 29 August 2019
Decision date: 12 February 2020
Before: White JA at [1];
Johnson J at [270];
Lonergan J at [275]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether primary judge in summing-up failed to balance adequately the defence and Crown cases – primary judge entitled to remind the jury of evidence given in the course of the trial which impacts on the defence or Crown case – primary judge entitled to suggest to the jury that if they accept certain evidence it would be highly supportive of other evidence unfavourable to the defence – whether primary judge undermined the defence case through raising matters of speculative possibility rather than addressing the evidence – no miscarriage of justice shown in light of the summing-up as a whole

CRIME — Appeals — Leave to adduce evidence on appeal — Fresh evidence – whether evidence fresh evidence or new evidence where witness was a co-accused who pleaded guilty and agreed to a statement of facts unfavourable to the appellant which was later recanted – no knowledge of the unfavourable statement of facts at time decision made not to call or to ask the Crown not to call – evidence not fresh evidence as a conscious forensic decision made not to call the witness at the time of the trial
CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether verdict to convict unreasonable in light of new evidence – whether verdict to convict unreasonable in light of contradictory evidence ventilated at trial – where new evidence is of low probative value and raises significant reliability issues due to intoxication and inconsistency – where all of the relevant discrepancies in the evidence identifying the appellant were put to the jury and capable of resolution – no reasonable doubt raised
Legislation Cited: Crimes Act 1958 (Vic), s 568
Criminal Appeal Act 1912 (NSW), s 6
Evidence Act 1995 (NSW), s 137
Cases Cited: Libke v The Queen (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Mulholland v R [2018] NSWCCA 299
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v RTB [2002] NSWCCA 104
Ratten v The Queen (1974) 131 CLR 510
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smith v New South Wales Bar Association (1992) 176 CLR 256
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Whitlam v Australian Security and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183
Category: Principal judgment
Parties: Sasikaran Balachandran (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Dalton SC (Appellant)
M Cinque SC with K Jeffreys (Respondent)
Solicitors:
Legal Aid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balachandran v The Queen

Details

AGLC: Balachandran v The Queen [2020] NSWCCA 12
Case: [2020] NSWCCA 12
Decision Date: 12 February 2020

CaseChat Overview and Summary

In the matter of Balachandran v The Queen, the appellant, Balachandran, challenged his conviction for a criminal offence. The case was heard in the court of appeal, where the appellant argued that a miscarriage of justice had occurred due to alleged errors in the summing-up by the primary judge. The appellant contended that the judge failed to adequately balance the defence and Crown cases and that the summing-up was skewed against the defence. The appellant also sought to introduce fresh evidence from a co-accused who had previously pleaded guilty but later recanted their statement. The court was tasked with determining whether the primary judge's summing-up contained errors that could be considered a miscarriage of justice and whether the new evidence should be admitted.

The court considered whether the primary judge had erred in their summing-up by suggesting to the jury that certain evidence was highly supportive of other evidence unfavourable to the defence. The court found that the primary judge was entitled to remind the jury of evidence given in the course of the trial which impacted on the defence or Crown case. The court also held that the primary judge did not undermine the defence case by raising matters of speculative possibility. The court further examined whether the new evidence from the co-accused should be considered fresh evidence or new evidence. The court concluded that the evidence was not fresh as it was a conscious decision not to call the witness at the time of the trial due to unawareness of the unfavourable statement of facts. The court also noted that the new evidence had low probative value and raised significant reliability issues.

The court found that the summing-up, when considered as a whole, did not amount to a miscarriage of justice. The court also held that the new evidence, despite being contradictory, did not raise a reasonable doubt as to the appellant's identity as the perpetrator. The court held that the verdict to convict was not unreasonable in light of the new evidence and the contradictory evidence ventilated at trial. The appeal was therefore dismissed, and the conviction was upheld. The court did not consider it appropriate to order a retrial, as the new evidence did not undermine the reliability of the verdict reached by the jury.

Orders