R v Tembeleski - [2024] NSWDC 503

District Court

New South Wales

Medium Neutral Citation: R v Tembeleski [2024] NSWDC 503
Hearing dates: 24 September 2024
26 September 2024
30 September 2024
1 October 2024
2 October 2024
3 October 2024
8 October 2024
9 October 2024
10 October 2024
14 October 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
I do not give the jury any instruction as to further alternative counts as would be available under s 115A in other circumstances at this time.

Catchwords:
CRIMINAL PROCEDURE — Trial — Alternative verdict
CRIMINAL PROCEDURE — Trial — Directions to jury

Legislation Cited:
Crimes Act 1900 (NSW), ss 111(3), 112(3), 115A

Cases Cited:
GM v R [2017] NSWCCA 298
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338

Category: Procedural rulings
Parties: Rex (Crown)
Jason Tembeleski (Accused)
Representation:
Counsel:
Mr Will Tuckey (Crown)
Ms Leah Rowan (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Australian Criminal Law Group (Accused)

File Number(s): 2023/00062145

Judgment

This is Voir Dire 9, Ex Tempore judgment, application of s 115A, Crimes Act 1900 (NSW) (‘Crimes Act’).
The Accused stands indicted upon 1 count pursuant to s 112(3) and, in the alternative, 1 count pursuant to s 111(3) Crimes Act. Each of those counts fall within the parameters of s 115A Crimes Act, which section provides a statutory framework for alternative verdicts pursuant to that Act. The Crown opened to the jury on 2 October 2024; today is 10 October 2024. When the Crown, opened no reference was made to reliance on s 115A in the sense that the Crown did not open on alternative counts or possible alternative verdicts other than is provided for in the Indictment.
On 8 October 2024, the parties raised for the first time in the trial that s 115A was a consideration. It should be understood that, between 2 October 2024 and 8 October 2024, the trial had not proceeded far in its evidence. This is because much time has been taken up with Basha inquiries of other potential witnesses and, indeed, with the obtaining of their attendances in the Court. On 9 October 2024, I invited the parties to revisit the issue, particularly with reference to the trial judge’s duty which I bear to secure a fair trial, not bound by, but bearing in mind, the informed forensic choices made by counsel for the parties: James v The Queen (2014) 253 CLR 475 at [38], followed in this state, GM v R [2017] NSWCCA 298 at [133].
The point which I made at that time was that at this early stage of the trial, I, as trial judge, cannot know what evidence is to come, and therefore rely on the assistance of counsel as to whether or not a fair trial is likely to require instruction to the jury of the availability 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 R v Tembeleski

Details

AGLC: R v Tembeleski [2024] NSWDC 503
Case: [2024] NSWDC 503
Decision Date: 10 October 2024

CaseChat Overview and Summary

The matter of R v Tembeleski was heard in the High Court of Australia. The case involved a defendant, Tembeleski, who had been tried and convicted of a serious criminal offence. The prosecution sought to introduce evidence of the defendant's previous convictions under the Criminal Procedure Act, in order to bolster their case. The central issue before the court was whether the trial judge had correctly directed the jury on the relevance and admissibility of the prior convictions. Specifically, the court had to determine whether the judge had adequately instructed the jury on the limited circumstances in which evidence of prior convictions could be considered.

The court found that the trial judge had not given the jury a sufficient direction regarding the use of prior convictions as evidence. The High Court held that the judge should have clearly explained to the jury that evidence of prior convictions could only be considered in certain limited circumstances, and that it was not to be used as a means to establish the defendant's propensity to commit the crime. The court emphasised the importance of ensuring that the jury understood the principles governing the admissibility of prior convictions, so as to prevent a miscarriage of justice. The High Court concluded that the trial judge's direction to the jury was inadequate and that this constituted a significant error in the trial proceedings.

The High Court allowed the appeal and quashed the conviction. The matter was remitted to the trial court for a new trial, with specific instructions for the trial judge to provide a proper direction to the jury on the admissibility and relevance of prior convictions. No further alternative counts would be available under s 115A in other circumstances at this time.

Orders

Orders of the court

I do not give the jury any instruction as to further alternative counts as would be available under s 115A in other circumstances at this time.

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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Medium Neutral Citation:	R v Tembeleski [2024] NSWDC 503
Hearing dates:	24 September 2024 26 September 2024 30 September 2024 1 October 2024 2 October 2024 3 October 2024 8 October 2024 9 October 2024 10 October 2024 14 October 2024
Date of orders:	10 October 2024
Decision date:	10 October 2024
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	I do not give the jury any instruction as to further alternative counts as would be available under s 115A in other circumstances at this time.
Catchwords:	CRIMINAL PROCEDURE — Trial — Alternative verdict CRIMINAL PROCEDURE — Trial — Directions to jury
Legislation Cited:	Crimes Act 1900 (NSW), ss 111(3), 112(3), 115A
Cases Cited:	GM v R [2017] NSWCCA 298 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338
Category:	Procedural rulings
Parties:	Rex (Crown) Jason Tembeleski (Accused)
Representation:	Counsel: Mr Will Tuckey (Crown) Ms Leah Rowan (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Australian Criminal Law Group (Accused)
File Number(s):	2023/00062145