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
Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cornwell v R [2015] NSWCCA 269
Green v The King (1939) 61 CLR 167; [1939] HCA 4
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
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
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:
Solicitors:
S Odgers SC with S Kluss (Applicant)
E Wilkins SC (Respondent)
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…
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- AGLC
- Lawavou v The King [2025] NSWCCA 35
- Case
- [2025] NSWCCA 35
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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