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 1999PARTIES :
Regina v Elia TomaJUDGMENT 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
Monday 22 November 1999
James J
Dowd J
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…
Continue reading R v Toma
Sign in free to access the full text
- AGLC
- R v Toma [1999] NSWCCA 350
- Case
- [1999] NSWCCA 350
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.