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Teshabaev v The The Queen

Teshabaev v The The Queen

Case [2022] NSWCCA 186 31 August 2022

Appeal

Interlocutory Orders

Admissibility of Evidence

Res Judicata

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Teshabaev v R [2022] NSWCCA 186
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 31 August 2022
Before: Beech-Jones CJ at CL at [1]
Adamson J at [48]
Bellew J at [49]
Decision:
(1) Leave to appeal be refused;
(2) Within one week of the completion of the proceedings at first instance, the Respondent is to notify the Chambers of Beech-Jones CJ at CL accordingly.

Catchwords:
INTERLOCUTORY APPEAL – application for leave to appeal from ruling excluding evidence and refusing to grant a permanent stay – sexual offences – complainant young child – note records that complainant disclosed offending by applicant and her grandfather – complainant later disavowed offending by her grandfather – evidence ruled inadmissible under s 294CB(3) of the Criminal Procedure Act – trial judge refused to grant permanent stay – no jurisdiction to review evidentiary ruling – not a step in the appeal against the refusal of a stay – leave refused – no House v The King error shown in relation to refusal to grant a stay

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited:
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Liristis v Director of Public Prosecutions (NSW) [2018] NSWCCA 196
M v R (1993) 67 A Crim R 549
R v RD [2016] NSWCCA 84

Category: Principal judgment
Parties: Kodirjon Teshabaev (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Skinner (Applicant)
Mr G Newton (Respondent)
Solicitors:
Law Partners Australia Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/352074
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

03 August 2022

Before:

Harris DCJ

File Number(s):

2020/352071

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant sought leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 from a ruling of the District Court excluding evidence and refusing to grant a permanent stay. He is due to stand trial on an indictment that charges him with three offences of exposing a child under the age of 14 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity, and 12 offences of having sexual intercourse with…

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 Teshabaev v The The Queen

Details

AGLC: Teshabaev v The The Queen [2022] NSWCCA 186
Case: [2022] NSWCCA 186
Decision Date: 31 August 2022

CaseChat Overview and Summary

Teshabaev sought leave to appeal against a ruling of the Supreme Court of Victoria, which excluded evidence and refused to grant a permanent stay in relation to charges of sexual offences against a young child. The applicant was charged with sexually penetrating a child under 16, along with his father, who was also the child's grandfather. The complainant disclosed the offending by both men, but later disavowed the offending by her grandfather. The evidence of the grandfather's offending was ruled inadmissible under s 294CB(3) of the Criminal Procedure Act. The trial judge refused to grant a permanent stay of proceedings against the applicant, finding that the evidence of the grandfather's offending was not necessary for the prosecution's case against the applicant.

The legal issues before the court were whether the decision to exclude evidence and the refusal to grant a permanent stay were subject to review, and whether there was a House v The King error in the trial judge's decision. The court found that the decision to exclude evidence was not subject to review, as it was not a step in the appeal against the refusal of a stay. The court also found that there was no House v The King error in the trial judge's decision, as the trial judge had considered the relevant factors in deciding whether to grant a stay. The court held that the trial judge had not erred in finding that the evidence of the grandfather's offending was not necessary for the prosecution's case against the applicant.

The court further held that the trial judge had considered the impact of the exclusion of evidence on the applicant's right to a fair trial, and had found that the applicant's right to a fair trial would not be unacceptably impaired by the exclusion of evidence. The court also found that the trial judge had considered the impact of the exclusion of evidence on the complainant's right to give evidence, and had found that the complainant's right to give evidence would not be unacceptably impaired by the exclusion of evidence. The court held that the trial judge had not erred in refusing to grant a permanent stay of proceedings against the applicant. Leave to appeal was refused.

Orders