Kaifoto aka Teaupa v R - [2006] NSWCCA 186

CITATION: Kaifoto aka Teaupa v Regina [2006] NSWCCA 186

HEARING DATE(S): 13 December 2005

JUDGMENT DATE:
19 June 2006

JUDGMENT OF: Grove J at 1; James J at 112; Simpson J at 114

DECISION: Appeal against conviction dismissed; Appeal against sentence allowed in part

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SEPARATE TRIAL ON TWO INDICTMENTS RELATING TO DIFFERENT VICTIMS - RELATIONSHIP EVIDENCE ADMITTED - NO BREACH OF REQUIREMENTS CONCERNING TENDENCY OR COINCIDENCE EVIDENCE - DELAY IN PROSECUTION - COMPLAINT OF MATTERS IN ADDRESS BY CROWN PROSECUTOR - REMEDY AVAILABLE AT TRIAL - ADEQUACY OF DIRECTIONS - SENTENCE - APPEAL ALLOWED TO VARY SENTENCING ORDERS TO ACHIEVE INTENTION STATED BY SENTENCING JUDGE

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Longman v The Queen 1989 168 CLR 79
R v Atroushi [2001] NSWCCA 406
R v Beserick 1993 30 NSWLR 510
R v Garner 1963 81 WN (NSW) 120
R v Hookey [2004] NSWCCA 223
R v Murray 1987 11 NSWLR 12
R v Preston, unrep NSWCCA 9 April 1997
R v Simpson 2001 53 NSWLR 704

PARTIES: Paea Teaupu Kaifoto aka John Teaupa v Regina

FILE NUMBER(S): CCA 2005/1341

COUNSEL: A. Francis (Applicant)
N. Noman (Crown/Respondent)

SOLICITORS: S. O'Connor (Applicant)
S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1072

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

LOWER COURT DATE OF DECISION: 2 July 2004

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

2005/1341
GROVE J
JAMES J
SIMPSON J

19 June 2006

PAEA TEAUPU KAIFOTO aka JOHN TEAUPA v REGINA

Judgment

1 GROVE J: Following a ruling by the presiding judge Dodd DCJ concerning intended use of evidence on the basis of tendency or coincidence, the appellant was tried successively before his Honour and juries on two indictments involving female victims.

2 The first indictment charged offences committed on a woman whom I will refer to as RA. It contained seven counts. Counts 1 and 2 charged assault occasioning actual bodily harm, to each of which the appellant pleaded guilty. Count 3 charged common assault and each of counts 4 to 7 inclusive charged aggravated sexual assault contrary to s 61J(1) of the Crimes Act1900. The latter offences carried a prescribed available maximum penalty of twenty years imprisonment.

3 The appellant pleaded not guilty to counts 3 to 7. He was found not guilty on count 3 but convicted on counts 4 to 7.

4 The second indictment charged offences committed on a woman whom I will refer to as TM. It contained three counts. Count 1 charged sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 which stipulates a prescribed maximum penalty of fourteen years imprisonment. To this count he pleaded not guilty but was convicted. Count 2 charged assault occasioning actual bodily harm to which the appellant pleaded guilty. Count 3 charged detaining the victim for advantage of the offender contrary to s 90A of the Crimes Act for which a maximum penalty of twenty years imprisonment is available. The appellant…

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.

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Details

Case: [2006] NSWCCA 186
Decision Date: 19 June 2006

CaseChat Overview and Summary

In this case, the appellant, Kaifoto, was convicted of multiple counts of sexual assault against two different victims. The case was heard in the Court of Criminal Appeal, where the appellant sought to appeal his convictions and sentences. The primary issues before the court were whether the trial judge erred in admitting evidence of the relationship between the appellant and one of the victims, whether there was a breach of the requirements concerning tendency or coincidence evidence, whether the delay in prosecution prejudiced the appellant, and whether the trial judge's directions to the jury were adequate. Additionally, the appellant argued that the sentences imposed were excessive.

The court found that there was no error in the trial judge's decision to admit evidence of the relationship between the appellant and one of the victims, as it was relevant to the issues in the trial. The court also found that there was no breach of the requirements concerning tendency or coincidence evidence, as the evidence was properly admitted and considered by the jury. Regarding the delay in prosecution, the court found that any prejudice caused by the delay was adequately addressed by the trial judge's directions to the jury. The court further found that the trial judge's directions to the jury were adequate, and there was no error in the trial judge's handling of the case. However, the court did find that the sentences imposed were excessive and did not achieve the intention stated by the sentencing judge. Consequently, the court allowed the appeal and varied the sentencing orders to achieve the intention stated by the sentencing judge.

Orders