R v Taumaialo - [2000] NSWCCA 14

CITATION: R v Taumaialo [2000] NSWCCA 14

FILE NUMBER(S): CCA 60696/97

HEARING DATE(S): Monday 7 February 2000

JUDGMENT DATE:
18 February 2000

PARTIES :

Regina v Keli Taumaialo

JUDGMENT OF: Grove J at 1; Sully J at 36; Simpson J at 37

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/1251

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : C.K. Maxwell QC (Crown)
H.P. Cox (Appellant)

SOLICITORS: C.E. O'Connor (Crown)
T.A. Murphy (Appellant)

CATCHWORDS: Criminal Law and Procedure - - Evidence - - Discretionary Exclusion - - Summing-up - - Directions on Delay in Complaint - - Sentence - - Mild Intellectual Disablement

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
House v The King 1936 55 CLR 499
Regina v Preston, unreported CCA 9 April 1997
R v Knape 1960 5 VR 469
R v Weaver 1968 1 QB 353
Longman v The Queen 1989 168 CLR 79
Crofts v The Queen 1996 186 CLR 427
R v Gust 1999 NSW CCA 265
R v Scognamiglio 1991 56 A Crim R 81
R v Bus, unreported CCA 3 November 1995

DECISION: Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60696/97

GROVE J
SULLY J
SIMPSON J

Friday 18 February 2000

REGINA v KELI TAUMAIALO

JUDGMENT
1    GROVE J : The appellant was convicted on two counts of sexual assault without consent in circumstances of aggravation after a trial before Ainslie-Wallace DCJ and a jury. Two grounds of appeal were argued and in the alternative the appellant sought leave to appeal against the severity of sentence. At the conclusion of the trial the appellant also appeared for sentence after pleas of guilty to two counts in a separate indictment charging assault occasioning actual bodily harm and larceny. On this latter indictment the appellant was sentenced to concurrent terms of twelve and six months penal servitude and on the counts of the trial indictment he was sentenced to concurrent total terms of eight years penal servitude cumulative upon the twelve months sentence and divided into minimum and additional terms of five years and three years respectively.
2    The relevant grounds of appeal were expressed as follows:

“That the learned trial judge erred in failing to discharge the jury after the evidence ‘a lot of people have been saying that he (the accused) had a gun and that he wasn’t afraid to use it and kill people’, and

Her Honour erred in the direction she gave concerning the complainant’s evidence.”

3    The appellant and the complainant had been acquainted for a short time before the offences. He was then aged twenty years and she fourteen. On Saturday 10 August they encountered each other near some shops at Shalvey. The complainant was in the company of two female friends. There was some verbal exchange there and at a later encounter near the appellant’s home he asked the complainant if she would accompany him to church on Sunday.
4    Some time before lunch on that following day, the appellant called at 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 R v Taumaialo

Details

AGLC: R v Taumaialo [2000] NSWCCA 14
Case: [2000] NSWCCA 14
Decision Date: 18 February 2000

CaseChat Overview and Summary

In the matter of the Regina versus Taumaialo, the accused was convicted of a criminal offence and was sentenced by the Supreme Court of New South Wales. The case focused on the admissibility of evidence and the impact of delay in reporting the offence, as well as the accused's intellectual disability on sentencing. The court was tasked with determining whether the trial judge had properly exercised the discretion to exclude evidence under s 137 of the Evidence Act 1995 (NSW), and whether the summing-up to the jury contained an appropriate direction concerning the delay in the complaint of the offence. Furthermore, the court considered the appropriate sentence for the accused, taking into account his mild intellectual disability.

The key legal issues were whether the trial judge had erred in excluding certain evidence and whether the summing-up to the jury was appropriate. The court also needed to consider whether the trial judge had adequately taken into account the accused's intellectual disability when passing sentence. The Crown argued that the evidence was relevant and should not have been excluded, and that the summing-up was proper. The defence contended that the trial judge had erred in excluding the evidence and that the summing-up contained an impermissible direction concerning the delay in the complaint. Regarding sentencing, the defence submitted that the trial judge had not properly considered the accused's intellectual disability.

The court held that the trial judge had exercised the discretion to exclude evidence correctly, and that the summing-up to the jury was appropriate. The court found that the trial judge had adequately taken into account the accused's intellectual disability when passing sentence. The court noted that the evidence in question had little probative value and was likely to cause undue prejudice to the accused. The court also found that the summing-up did not contain an impermissible direction concerning the delay in the complaint. The court held that the trial judge had not erred in considering the accused's intellectual disability when passing sentence, and that the sentence was appropriate in all the circumstances. The court dismissed the appeal and affirmed the conviction and sentence of the accused.

In conclusion, the court upheld the conviction and sentence of the accused, finding that the trial judge had exercised the discretion to exclude evidence correctly, and that the summing-up to the jury was appropriate. The court also held that the trial judge had adequately taken into account the accused's intellectual disability when passing sentence. The appeal was dismissed, and the conviction and sentence of the accused were affirmed.

Orders