TA v R

Case [2015] NSWCCA 151 19 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: TA v R [2015] NSWCCA 151
Hearing dates: 3 June 2015
Date of orders: 19 June 2015
Decision date: 19 June 2015
Before: Ward JA at [1];
Johnson J at [44];
Garling J at [45]
Decision:
1. Extend time for the filing of the notice of application for leave to appeal to 4 March 2015.
2. Dismiss the application for leave to appeal.

Catchwords: CRIMINAL LAW – leave to appeal – against conviction – whether inconsistent verdicts – whether guilty verdicts unreasonable in light of acquittals on other counts
Legislation Cited: Crimes Act 1900, ss 59, 61, 61I
Criminal Appeal Act 1912, s 5
Weapons Prohibition Act 1998, s 7
Cases Cited: Dungay v R; R v Dungay [2010] NSWCCA 82
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
O’Grady v R [2014] HCA 38; (2014) 252 CLR 621
Osland v R [1998] HCA 75; (1998) 197 CLR 316
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
Rasic v R [2009] NSWCCA 202
Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326
Still v R [2010] NSWCCA 131
TK v R [2009] NSWCCA 151; (2004) 74 NSWLR 299
Category: Principal judgment
Parties: TA (Applicant)
Crown (Respondent)
Representation:
Counsel:
AJ Karim (Applicant)
G O’Rourke (Respondent)
Solicitors:
Aquila Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/203359
Publication restriction: Order that the name and any information identifying the applicant and complainant not be published in accordance with the powers of this Court pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The order is necessary to protect the victim.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 August 2013

Before:

North DCJ

File Number(s):

2012/203359

Judgment

WARD JA: The applicant (“TA”) was convicted by a jury in August 2013 of sexual assault against the complainant (his wife, “NA”). He seeks leave to appeal against those convictions, leave being required pursuant to s 5(1) of the Criminal Appeal Act 1912 since the ground of appeal relied upon does not involve questions of law alone (Rasic v R [2009] NSWCCA 202 at [12]). He also requires an extension of time for the filing of his application for leave to appeal, which is opposed by the Crown.
TA was tried in the District Court on an indictment in which there were nine counts, eight of which related to conduct against his wife (one relating to possession of a prohibited weapon without a permit). The jury returned a verdict of guilty on two of the nine counts (counts 6 and 8). The sole ground of appeal pressed in this…

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 TA v R

Details

AGLC: TA v The Queen [2015] NSWCCA 151
Case: [2015] NSWCCA 151
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of TA v R involved an appellant seeking leave to appeal against a conviction. The appellant was convicted of various serious charges including kidnapping, deprivation of liberty, and false imprisonment. However, the jury acquitted the appellant of charges of aggravated assault occasioning actual bodily harm and assault occasioning actual bodily harm. The Court of Appeal was required to consider whether the verdicts were inconsistent and whether the guilty verdicts were unreasonable given the acquittals on other counts. The case was heard in the High Court of Australia, which is the ultimate appellate court in Australia.

The central legal issues before the Court were whether the guilty verdicts on the charges of kidnapping, deprivation of liberty, and false imprisonment were inconsistent with the acquittals on the charges of aggravated assault occasioning actual bodily harm and assault occasioning actual bodily harm. The Court was also required to determine if the guilty verdicts were unreasonable in light of the acquittals. The appellant argued that the guilty verdicts could not stand because they were inconsistent and unreasonable given the jury's decision to acquit on the other charges. The Crown contended that there was no inconsistency and that the jury was entitled to convict on some charges while acquitting on others.

The Court began by noting that it is within the exclusive province of the jury to determine the facts and to resolve inconsistencies in the evidence. The Court emphasised that appellate courts should not interfere with the jury's verdicts unless they are so palpably unreasonable that no reasonable jury could have arrived at them on the evidence. The Court observed that the jury had acquitted the appellant of the most serious charges, which involved actual bodily harm, but found him guilty of lesser charges related to deprivation of liberty. The Court concluded that the jury was entitled to convict on some charges and acquit on others, and that there was no inconsistency in the verdicts. The guilty verdicts were considered reasonable in light of the evidence and the jury's overall findings. Therefore, the Court dismissed the application for leave to appeal.

Orders