R v Tisdell

[2003] NSWCCA 60

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Tisdell [2003]  NSWCCA 60

FILE NUMBER(S):
60491 of 2002

HEARING DATE(S):            12/03/03

JUDGMENT DATE: 12/03/2003

PARTIES:
Regina
v
Tisdell

JUDGMENT OF:      Meagher JA Dowd J Barr J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        97/21/0217

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

COUNSEL:
A: P M Paish
R: P G Ingram

SOLICITORS:
A: Freemans
R: S E O'Connor

CATCHWORDS:
Admission that evidence given at trial was false - quashing of conviction.

LEGISLATION CITED:

DECISION:
1. Appeal allowed; 2. Conviction quashed; 3. Order of acquittal be entered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60491 of 2002

MEAGHER JA
DOWD J
BARR J

Wednesday, 12 March 2003

REGINA v TISDELL

Judgment

1. MEAGHER JA:  The appellant, Mr Shane Tisdell, was arraigned on 10 September 1998 on six counts of sexual assault sexual intercourse without consent with a certain LT, his half sister.  He pleaded not guilty to all six counts.

2. At the trial which followed, the jury found him guilty on five counts and not guilty on one count.  Thereafter, her Honour Judge Ainsley-Moss, sentenced him to a concurrent term of imprisonment of eight years in relation to all five counts.  He has now served over four years of that sentence.

3. In the trial Miss T’s evidence was virtually, but not entirely, the only evidence against the appellant, in October 2002 Miss T approached the police and informed them that:

   a.          Her evidence in the trial was false; and

   b.The appellant had never in her life had sexual intercourse with her.

4. She has sworn to that effect before this Court today.

5. It is not our business to decide which version of the facts is correct, although if we had to decide the matter I, for my part, would accept her retraction.  On any test, in these circumstances, the appeal should succeed and Mr Tisdell’s convictions be quashed.  That, in my view, should be the order of the Court, and any extension of time to appeal should, of course, be granted.

6. DOWD J:  I agree, and if I had to decide the matter I would also accept the retraction of LT.

7. BARR J:  I am of the same view on the facts.  I agree for the reasons given by the presiding judge that the appeal should be allowed, the convictions quashed and the verdicts of acquittal entered.

8. MEAGHER JA:  The orders of the Court therefore are appeal allowed, conviction quashed, order of acquittal be entered.

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LAST UPDATED:            28/03/2003