R v FDP

Case [2008] NSWCCA 317


Reported Decision: 192 A Crim R 8774 NSWLR 645

New South Wales


Court of Criminal Appeal

CITATION: FDP v R [2008] NSWCCA 317
HEARING DATE(S): 05/12/2008
 
JUDGMENT DATE: 

18 December 2008
JUDGMENT OF: 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.
LEGISLATION CITED: Crimes Act 1900 - ss 33, 35, 87(1)
Criminal Appeal Rules - r 4
Evidence Act 1995 - ss 41, 66, 116, 130, 137
Criminal Procedure Act 1986 - ss 108, 166, 275A, 281
CATEGORY: Principal judgment
CASES CITED: R v Moussa [2001] NSWCCA 427
Steve v R [2008] NSWCCA 231
R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44
Papakosmas v The Queen (1999) 196 CLR 297
R v Villa [2005] NSWCCA 4
R v Reid [1990] NSWCCA 258
Dhanhoa v The Queen [2003] HCA 40
Gonzales v R [2007] NSWCCA; 178 A Crim R 232
R v Lyberopoulos [2002] NSWCCA 280
HML v The Queen [2008] HCA 16; 82 ALJR 723
O'Leary v The King (1946) 73 CLR 566
Wilson v The Queen (1970) 123 CLR 334
Harriman v The Queen (1989) 167 CLR 590
R v Quach [2002] NSWCCA 519
DJV v R [2008] NSWCCA 272
R v GK [2001] NSWCCA 413; 53 NSWLR 317
Seymour v R [2006] NSWCCA 206; 162 A Crim R 576
Hamid v R [2006] NSWCCA 302; 164 A Crim R 179
WNB v R [2006]NSWCCA 269
PARTIES: FDP v Regina
FILE NUMBER(S): CCA 2007/00005167
COUNSEL: V Lydiard - Crown
S Corish - Appellant
SOLICITORS: S Kavanagh - Crown
S O'Connor
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 07/11/0126
LOWER COURT JUDICIAL OFFICER: Goldring DCJ




                          2007/00005167

                          McCLELLAN CJ at CL
                          GROVE J
                          HOWIE J

                          THURSDAY 18 DECEMBER…

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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.

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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