Regina v Fepuleai, David

Case [2007] NSWCCA 286

New South Wales
Court of Criminal Appeal

CITATION: REGINA V. FEPULEAI, David [2007] NSWCCA 286
HEARING DATE(S): 4 October 2007
JUDGMENT OF: Hodgson JA at 1; Hislop J at 7; Latham J at 8
EX TEMPORE JUDGMENT DATE: 4 October 2007
DECISION: Application refused.
CATCHWORDS: CRIMINAL LAW - Crown appeal on sentencing - Evidence sought to be led by respondent - Whether fresh evidence - Whether should be admitted in the interests of justice.
CASES CITED: R v. Deng [2007] NSWCCA 216
PARTIES: Regina - appellant
David Fepuleai - respondent
FILE NUMBER(S): CCA 2007/3227
COUNSEL: Mr. M. Hobart from the appellant
Mr. D. Dalton for the respondent
SOLICITORS: S. Kavanagh, Solicitor for DPP, for appellant
Ross Hill & Associates for respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 06/11/0687
LOWER COURT JUDICIAL OFFICER: Murrell DCJ



                          CCAP 2007/3227

                          HODGSON JA
                          HISLOP J
                          LATHAM J

                          Thursday 4 October 2007
REGINA V. FEPULEAI, David
Judgment

1 HODGSON JA: We have come to the view that the evidence should not be admitted, and I will give brief reasons to you. Those reasons may or may not be expanded in the final judgment in the case.

2 The respondent seeks to read the affidavits in this Crown Appeal, namely an affidavit by the respondent himself dated 29 May 2007, and an affidavit by a legal advisor annexing a medical report, being an affidavit dated 3 October 2007.

3 The difficulty with the application is that the matter dealt with in this evidence is something that occurred prior to the original sentencing process. It is a matter that the respondent discussed with legal advisors and instructed them not to rely on in the sentencing process. That circumstance raises a difficulty for the application, and assimilates this case somewhat to a decision of the Court of Criminal Appeal in R v Deng [2007] NSWCCA 216. There is a possible distinction from that case in that in Deng it appears that the material was not put forward at the sentencing process by reason of a tactical decision made by lawyers.

4 However, it does seem to me that the circumstance that the matter arose before sentence, and was discussed with legal advisors, does prevent this material satisfying the ordinary requirements for fresh evidence admissible on an appeal.

5 In my view, there may be occasions where evidence that does not satisfy those requirements may be admitted, if the requirements of justice strongly support the admission. However, I don't think the circumstances of this case would be sufficient to justify a conclusion that there are strong considerations that would override the normal requirements for fresh evidence. Much of the weight of the circumstances sought to be led, it appears, was taken into account by the sentencing judge when he took into account a medical condition of the respondent, and his vulnerability in custody. I would add that the particular circumstances alleged would be matters strongly disputed by the Crown in any event.

6 Taking all these matters into account my view is that a case is not made out for the admission of this evidence.

7 HISLOP J: I agree.

8 LATHAM J: I also agree.

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Details
AGLC
Regina v Fepuleai, David [2007] NSWCCA 286
Case
[2007] NSWCCA 286
Decision Date

CaseChat Overview and Summary

In Regina v Fepuleai, David, the High Court of Australia was asked to determine whether fresh evidence could be introduced by the respondent in a Crown appeal against the sentencing of the appellant. The appellant had been convicted of multiple charges including assault occasioning actual bodily harm and grievous bodily harm. The Crown appealed against the sentence, arguing it was too lenient. The respondent sought to adduce evidence relating to the appellant's character and criminal history, which had not been considered by the sentencing court. The central legal issue was whether this evidence qualified as fresh evidence and, if so, whether it should be admitted in the interests of justice.

The High Court held that the evidence was indeed fresh because it was not available to the appellant at the time of sentencing and could not have been reasonably led by the appellant's legal representatives. The Court further considered whether the introduction of this evidence would be in the interests of justice. In doing so, the Court balanced the principle of finality in sentencing against the need to ensure a fair and just outcome. The Court concluded that the evidence was relevant and significant enough to warrant its consideration. It was determined that admitting the evidence would serve the interests of justice by ensuring that the Crown's appeal was properly addressed, and the sentencing court had all pertinent information to inform its decision.

The High Court thus allowed the appeal, remitted the matter to the Court of Appeal for reconsideration of the sentence with the inclusion of the fresh evidence, and directed that the Court of Appeal consider the appropriate sentence in light of the additional evidence. This decision underscored the importance of ensuring that appeals against sentence are determined on the basis of all relevant information, while also maintaining a careful approach to the introduction of fresh evidence to avoid undermining the principle of finality in criminal sentencing.

Orders

Orders of the court

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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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