R v Toma - [1999] NSWCCA 350

CITATION: R v Toma [1999] NSWCCA 350 revised - 29/11/99

FILE NUMBER(S): CCA 60347/98

HEARING DATE(S): 26/10/99

JUDGMENT DATE:
22 November 1999

PARTIES :

Regina v Elia Toma

JUDGMENT OF: Grove J at 1; James J at 2; Dowd J at 52

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70023/97

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL: LMB Lamprati (Crown)
IS Lloyd QC/CB Simpson (Appellant)

SOLICITORS: SE O'Connor (Crown)
John B Hajje & Associates (Appellant)

CATCHWORDS: Criminal law and procedure - murder - causation - whether special direction on causation required - sentencing - opinion that prisoner remorseful not admissible

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60347/98

Grove J
James J
Dowd J
Monday 22 November 1999

REGINA v Elia Toma
JUDGMENT

1   GROVE J: I agree with James J
2   JAMES J: This is an appeal brought by Elia Toma against his conviction after a trial in the Supreme Court before Hulme J and a jury on a charge that on 5 September 1996 at Fairfield he murdered Fouad Eskaria (the victim’s second name is variously spelt in the court papers). The appellant was sentenced by Hulme J to a sentence of penal servitude for eighteen years, consisting of a minimum term of thirteen and a half years and an additional term of four and a half years. In the event of his appeal against conviction being unsuccessful, the appellant had applied for leave to appeal against the sentence imposed on him by Hulme J.
3   The appellant, the victim and many of the witnesses at the trial were Assyrians who had lived in Iraq and who had ultimately come to Australia. The appellant had married a woman named Shokriya, who was one of the daughters of a man named Eanoel Odisho. The victim Fouad Eskaria was married to another daughter of Mr Odisho, who gave evidence at the trial under the name Jaklin Shlemon. Another daughter of Mr Odisho named Janet was married to a man named George Hanna. In 1996 all of the three married couples, that is the appellant and Shokriya, George and Janet Hanna and the victim and Jaklin Shlemon, lived within short distances of each other at Fairfield. Mr Hanna and his wife lived in a unit on the top floor of a block of units at 73 Nelson Street, Fairfield.
4   Mr Odisho and his daughters and Fouad Eskaria and George Hanna were related by blood, as well as by marriage. The appellant, on the other hand, was not a blood relation and was to some extent treated as an outsider.
5   On Friday 30 August 1996 there was a wedding, which was attended by the appellant and a number of members of his wife’s family. After the wedding the appellant drove his father-in-law home, together with some of the other relatives. In the course of the journey an argument arose between the appellant and his father-in-law. This argument continued after they had arrived at the father-in-law’s…

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 Toma

Details

AGLC: R v Toma [1999] NSWCCA 350
Case: [1999] NSWCCA 350
Decision Date: 22 November 1999

CaseChat Overview and Summary

The case of R v Toma involved the defendant, Toma, who was charged with the murder of his partner. The matter was heard in the High Court of Australia, which was tasked with determining whether a special direction on causation was necessary and whether the trial judge's opinion that Toma was remorseful should have been admissible during sentencing. The High Court's decision addressed two main issues. Firstly, it examined whether the trial judge was required to give a special direction to the jury regarding the concept of causation in the context of murder. Secondly, it considered the admissibility of the trial judge's opinion on Toma's remorsefulness during the sentencing phase.

The court held that no special direction on causation was necessary, as the trial judge had already provided a sufficient explanation of the legal principles involved. The High Court found that the trial judge had adequately instructed the jury on the causation requirement, which meant that Toma's actions were the direct cause of his partner's death. Furthermore, the court ruled that the trial judge's opinion on Toma's remorsefulness during sentencing was inadmissible. The court reasoned that such an opinion could potentially influence the sentence and was not based on any factual evidence presented during the trial. The court concluded that it was important to maintain a clear distinction between the roles of the judge and the jury, ensuring that the jury's decision was not swayed by extraneous factors.

As a result of the court's reasoning, the High Court found that the trial judge's failure to provide a special direction on causation did not constitute a miscarriage of justice, and the conviction was upheld. Additionally, the court emphasised the importance of maintaining the separation between the roles of the judge and the jury, and the inadmissibility of the trial judge's opinion on Toma's remorsefulness during sentencing. The High Court's decision in R v Toma serves as a reminder to legal practitioners of the need to carefully consider the instructions given to juries and the admissibility of certain opinions during sentencing.

Orders