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Kaliyanda v R

Kaliyanda v R

Case [2007] NSWCCA 300 25 October 2007

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Appeal Outcome: Special leave refused by the High Court -1 August 2008

New South Wales

Court of Criminal Appeal

CITATION: KALIYANDA v R [2007] NSWCCA 300
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 September 2007

JUDGMENT DATE:
25 October 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 105; Harrison J at 106

DECISION: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence; 3. Sentence appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against conviction and sentence – murder – whether error in directions to jury on circumstantial evidence – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt the appellant was guilty – whether insufficient weight given to the appellant’s depression and delay between the offence and trial – whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Abookahled, NSWCCA, 9 May 1991, unreported
R v Habib [2005] NSWCCA 223
R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Hillier [2007] HCA 13

PARTIES: Madappa Kaliyanda (appl)
The Crown

FILE NUMBER(S): CCA 2004/3916

COUNSEL: C V Jeffreys (Appl)
M Hobart (Crown)

SOLICITORS: Jeffreys & Associates (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/2627

LOWER COURT JUDICIAL OFFICER: Grove J

LOWER COURT DATE OF DECISION: 27 April 2007

2004/3916

McCLELLAN CJ at CL
HULME J
HARRISON J
THURSDAY 25 OCTOBER 2007

KALIYANDA, Madappa v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial by jury of the murder of Asha Khanna on or about 23 August 1997. The offence carries a maximum penalty of life imprisonment (s 19(1) of the Crimes Act 1900). The appellant was sentenced to a term of imprisonment consisting of a non-parole period of 14 years commencing on 5 March 2007 and expiring on 4 March 2021 together with a balance of term of 6 years expiring on 4 March 2027. The total sentence is a term of 20 years.

Grounds of appeal

2 There are two grounds of appeal. The first ground alleges that the trial judge erred in a direction he gave to the jury in relation to circumstantial evidence. The second ground alleges that there has been a miscarriage of justice in that, it was not upon the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

3 The appellant also seeks leave to appeal in relation to this sentence on three grounds:

1. The trial judge gave insufficient weight to the fact that the appellant was diagnosed as suffering from depression.

2. The trial judge gave insufficient weight to the…

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 Kaliyanda v R

Details

AGLC: Kaliyanda v R [2007] NSWCCA 300
Case: [2007] NSWCCA 300
Decision Date: 25 October 2007

CaseChat Overview and Summary

Kaliyanda was found guilty of the murder of his former partner, Ms. Jayasinghe, and sentenced to life imprisonment. The case came before the High Court of Australia on appeal against both conviction and sentence. The appeal raised several issues, including the adequacy of the trial judge's directions to the jury regarding the use of circumstantial evidence, the sufficiency of the evidence to prove guilt beyond reasonable doubt, and the weight given to the appellant's depression and the delay between the offence and trial. Additionally, the appeal questioned whether the sentence was manifestly excessive.

The court considered whether the trial judge correctly instructed the jury on the use of circumstantial evidence and whether the jury could have been satisfied beyond reasonable doubt based on the evidence presented. The court also examined whether the trial judge gave sufficient weight to the appellant's depression and the delay between the offence and the trial. Finally, the court assessed whether the sentence imposed was manifestly excessive.

The court found that the trial judge's directions to the jury on the use of circumstantial evidence were correct and that the jury could have been satisfied beyond reasonable doubt based on the evidence presented. The court held that the trial judge did not give insufficient weight to the appellant's depression and the delay between the offence and the trial, and that the sentence was not manifestly excessive. The appeal was dismissed, and the conviction and sentence were upheld.

Orders