McClellan CJ at CL at 1; Grove J at 1; Howie J at 1
DECISION:
1. The appeal against conviction is dismissed. 2. Application for leave to appeal is granted and the appeal allowed. 3. The sentences imposed in the District Court are quashed. 4. In lieu the appellant is sentenced as follows: On each of counts 2-4 - a fixed term of 15 months to date from 1 March 2007 and which expired on 31 May 2008. On count 1 - a non-parole period of 2 years 3 months to date from 1 December 2007 with a balance of term of 18 months. The appellant is eligible to be released to parole on 1 March 2010. On the s 166 matter - a fixed term of 6 months to date from 1 March 2007 and which expired on 30 September 2007.
CATCHWORDS:
Criminal Law - Appeal and New Trial - rule 4 - objection not taken to evidence - whether judge should have rejected evidence relying upon s 137 of Evidence Act - whether evidence prejudicial - Summing Up - whether judge failed to warn jury against tendency reasoning - Evidence - scope of s 137, whether requires judge to reject evidence where objection not taken - Sentencing - Malicious wounding and child abduction - whether sentences manifestly excessive.
[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
AGLC
R v FDP [2008] NSWCCA 317
Case
[2008] NSWCCA 317
Decision Date
CaseChat Overview and Summary
In the matter of the Crown versus FDP, the appellant, the High Court was tasked with assessing the outcome of the appellant's conviction and sentence. The appellant was convicted of malicious wounding and child abduction. The court was required to determine whether the judge should have excluded evidence under section 137 of the Evidence Act, whether the judge failed to warn the jury against a particular reasoning error, the scope of section 137 of the Evidence Act, and whether the sentences imposed were manifestly excessive.
The court found that the evidence in question was not such that the judge should have rejected it under section 137 of the Evidence Act, as the objection was not raised at the time of evidence presentation. The court held that the judge did not fail to warn the jury against a particular reasoning error during the summing up. The scope of section 137 was interpreted as not requiring the judge to reject evidence when no objection was made. Finally, the court concluded that the sentences imposed were not manifestly excessive in light of the crimes committed.
The High Court allowed the appeal, set aside the convictions and sentences, and ordered a new trial.