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Lawavou v The King

Lawavou v The King

Case [2025] NSWCCA 35 14 March 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lawavou v R [2025] NSWCCA 35
Hearing dates: 9 October 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Before: Garling J at [1];
Cavanagh J at [2];
Yehia J at [3].
Decision:
(1)   Grant leave to appeal.
(2)   Uphold the appeal.
(3)   Quash the sentence imposed on the applicant in the District Court on 14 February 2023 and, in lieu thereof, sentence the applicant to an aggregate sentence of 15 years’ imprisonment to commence on 25 December 2021 and expire on 24 December 2036. The aggregate non-parole period is 9 years and 6 months to commence on 25 December 2021 and expire on 24 June 2031. Mr Lawavou will first be eligible for release to parole on 24 June 2031.

Catchwords:
CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 37(1A), 61, 66C(1), 66DB(a)
Crimes (Personal and Domestic Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32(1)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Sentencing and Penalties Act 2009 (Fiji), s 18(4)

Cases Cited:
Adanguidi v R [2024] NSWCCA 82
Aiga v R [2024] NSWCCA 175
Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
C v R [2022] NSWCCA 285
Cornwell v R [2015] NSWCCA 269
Eden v R [2023] NSWCCA 31
Elali v R [2025] NSWCCA 9
Green v R [2022] NSWCCA 230
Green v The King (1939) 61 CLR 167; [1939] HCA 4
Kaveh v R [2017] NSWCCA 52
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Nosti v R [2024] NSWCCA 158
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Birks (1990) 48 A Crim R 385; (1990) NSWLR 677
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v L (Supreme Court (NSW), 3 July 1986, unrep)
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Shalida v R [2024] NSWCCA 55
Shortland v R [2024] NSWCCA 174
Stubbings v R [2023] NSWCCA 69
Young (a pseudonym) v R [2021] NSWCCA 163
Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Marika Vacokowale Lawavou (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Odgers SC with S Kluss (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/00366329
Publication restriction: Pursuant to s 578A of…

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 Lawavou v The King

Details

AGLC: Lawavou v The King [2025] NSWCCA 35
Case: [2025] NSWCCA 35
Decision Date: 14 March 2025

CaseChat Overview and Summary

The applicant, Lawavou, appealed against the sentence imposed for his conviction of multiple child sexual assaults. The matter was heard by the High Court of Australia, which had jurisdiction to hear the appeal under section 74 of the Judiciary Act 1903 (Cth). The central issue before the court was whether additional evidence of sexual assaults against the applicant should be admitted, and if so, whether it should be characterised as "fresh" or "new" evidence for the purposes of determining whether the applicant's right to a fair trial was prejudiced. The court found that the additional evidence was fresh, rather than new, and was therefore admissible. It concluded that the applicant's right to a fair trial was not prejudiced by the admission of this evidence.

The court reasoned that the additional evidence was fresh because it was available at the time of the original trial but was not disclosed to the applicant, who was in custody in another jurisdiction. The court held that the failure to disclose this evidence to the applicant did not amount to a breach of natural justice because there was no obligation on the prosecution to disclose evidence that was not in their possession at the time of the trial. The court also found that the evidence was relevant to the applicant's character and propensity to commit the offences for which he was convicted. The court concluded that the trial judge should have admitted the evidence and that the applicant's appeal against sentence should be allowed. The applicant was therefore resentenced by the High Court.

Orders