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Tabalbag v R

Tabalbag v R

Case [2016] NSWCCA 48 6 April 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tabalbag v R [2016] NSWCCA 48
Hearing dates: 22 March 2016
Date of orders: 06 April 2016
Decision date: 06 April 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [1]
Davies J at [1]
Decision:
(1) In the conviction appeal, grounds 1 and 2 are upheld and the appeal is allowed.
(2) Leave to rely upon ground 3 in the conviction appeal is refused.
(3) Ground 4 in the conviction appeal is not considered.
(4) The Crown appeal against sentence is not considered.
(5) The appellant’s conviction for the murder of Amin Sthapit is quashed.
(6) A new trial is to be ordered.

Catchwords: CRIMINAL LAW – conviction appeal – appellant’s guilt determined by majority verdict of jury – whether terms of s 55F(2)(b) of Jury Act 1977 (NSW) complied with – whether point reached in trial whereby majority verdict could be taken – whether court could have been satisfied after examination on oath of a juror that it was unlikely that the jurors would reach a unanimous verdict after further deliberation – s 55F(2)(b) not complied with – new trial ordered.
Legislation Cited: Crimes Act 1900 (NSW) – s 23
Jury Act 1977 (NSW) – s 55F(2)(b)
Criminal Appeal Rules (NSW)
Cases Cited: AGW v Regina [2008] NSWCCA 81
BG v R [2012] NSWCCA 139
Black v The Queen [1993] HCA 71; 179 CLR 44
BR v R [2014] NSWCCA 46; 86 NSWLR 456
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Green v The Queen [1997] HCA 50; 191 CLR 334
Hunt v Regina [2011] NSWCCA 152; 81 NSWLR 181
Le v R [2012] NSWCCA 202
Masciatonio v The Queen [1995] HCA 67; 183 CLR 58
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Pasoski v R [2014] NSWCCA 309
RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100
Wu v The Queen [1999] HCA 52; 199 CLR 99
Category: Principal judgment
Parties: Roy Tabalbag – Appellant
Regina – Respondent Crown
Representation: Counsel:
Ms B Rigg SC – Appellant
P Ingram SC – Respondent Crown
Solicitors:
Legal Aid NSW - Appellant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/340538
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Tabalbag [2015] NSWSC 1354

Date of Decision:

14 September 2015

Before:

Adams J

File Number(s):

2013/340538

Judgment

THE COURT:

Offences and sentence

On 12 June 2015 the appellant was found guilty of the murder of Amin Sthapit on 11 November 2013. This was after a jury trial presided over by Adams J which had commenced on 1 June. The verdict was a majority verdict of ten to one. The appellant had pleaded that he was not guilty of murder but guilty of manslaughter. That plea was not accepted by the Crown. The central issue in the trial was provocation. 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 Tabalbag v R

Details

AGLC: Tabalbag v The Queen [2016] NSWCCA 48
Case: [2016] NSWCCA 48
Decision Date: 06 April 2016

CaseChat Overview and Summary

Tabalbag v R concerned an appeal by the appellant against his conviction in the Supreme Court of New South Wales, sitting as a Court of Criminal Appeal. The appellant had been convicted of multiple criminal offences, and the conviction was based on a majority verdict rendered by the jury. The central dispute was whether the terms of section 55F(2)(b) of the Jury Act 1977 (NSW) were properly complied with, which governs the conditions under which a majority verdict can be accepted. Specifically, the court had to determine whether the trial had reached a point where a majority verdict could be taken, and whether it could have been satisfied, after examining a juror on oath, that it was unlikely the jury would reach a unanimous verdict with further deliberation.

The court examined whether the trial judge had correctly applied the criteria set out in section 55F(2)(b) of the Act. This involved assessing if the jury had deliberated for an adequate period and whether there was any evidence suggesting that a unanimous verdict was unlikely to be reached. The court found that the trial judge did not adequately consider the evidence that suggested a unanimous verdict was still possible. Consequently, the court concluded that the trial judge had not fulfilled the statutory requirements before accepting the majority verdict. This misapplication of the law meant that the appellant's right to a unanimous verdict, as mandated by the Act, was not properly upheld.

Ultimately, the court held that the appeal should be allowed because the trial judge did not comply with the statutory requirements for accepting a majority verdict. The error was deemed to be a significant procedural flaw that affected the fairness of the trial. As a result, the court ordered a new trial for the appellant. This decision underscores the importance of strictly adhering to the statutory provisions governing jury verdicts to ensure the integrity of the criminal justice process.

Orders