Bell P at [1]; Walton J at [134]; Beech-Jones J at [139]
Decision:
(1) The applicant be granted leave to appeal against his conviction on count 9 of the indictment presented against him on 4 June 2019, being an offence under s 111(2) of the Crimes Act 1900, that the appeal be allowed, the conviction set aside and an acquittal be entered.
(2) The applicant be otherwise granted leave to appeal against his convictions but the appeal be dismissed.
(3) That the aggregate sentence of imprisonment imposed on the applicant on 5 November 2019 be set aside, and in lieu thereof the applicant be sentenced to aggregate term of imprisonment for 14 months commencing 5 October 2019 and expiring on 4 December 2020, with a non-parole period of 10 months.
(4) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence that make up the aggregate sentence are:
(i) Count 4 – 12 months imprisonment;
(ii) Count 11 – 4 months imprisonment;
(iii) Count 12 – 4 months imprisonment.
Catchwords:
CRIMINAL LAW – Challenge to conviction – where Crown case in relation to one count required the applicant to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building – where no apparent means of applicant having accessed the balcony externally – whether conviction on this count unreasonable.
CRIMINAL LAW – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence.
CRIMINAL LAW – where applicant on parole at time of hearing of appeal – where challenge to convictions in respect of multiple counts succeeds – whether new trial should be ordered.
EVIDENCE – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence.
[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.
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Details
AGLC
Taylor v The Queen [2020] NSWCCA 355
Case
[2020] NSWCCA 355
Decision Date
CaseChat Overview and Summary
Taylor sought to challenge his conviction, arguing that the Crown's case in relation to one count was unreasonable as it required him to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building, with no apparent means of access. The appeal also questioned the probative value of tendency evidence presented by the Crown, which related to conduct almost ten years prior to the charged offences. The High Court of Australia was tasked with deciding these legal issues, along with whether a new trial should be ordered given Taylor's success in challenging multiple counts and his parole status at the time of the hearing.
The court examined the Crown's case, finding that the requirement for Taylor to have scaled the external wall or descended on the fourth floor balcony was unreasonable given the lack of any apparent means of access. This conclusion undermined the conviction on that count. Regarding the tendency evidence, the court considered the principles governing such evidence, assessing its probative value against the prejudicial effect. The court held that the evidence, though from almost a decade earlier, had significant probative value in establishing a pattern of conduct relevant to the charged offences.
The court concluded that while the conviction on one count was unreasonable, the overall evidence supported the convictions on other counts. Given the success in challenging multiple counts, the court considered whether a new trial should be ordered, taking into account Taylor's parole status at the time of the hearing. Ultimately, the court determined that a new trial was not warranted.
The High Court allowed the appeal in part, quashed the conviction on the count involving scaling the external wall or descending on the fourth floor balcony, and affirmed the convictions on other counts. No new trial was ordered.