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TF v The King

TF v The King

Case [2024] NSWDC 542 22 November 2024

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: TF v R [2024] NSWDC 542
Hearing dates: 6 November 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Appeal Dismissed in respect of Sequence 14
Appeal Upheld in respect of Sequences 1, 2, 3, 11, 15, and 16

Catchwords:
Appeal against decision of the Local Court – junior counsel seeks to revisit forensic decisions made by experienced Senior Counsel in the Local Court – multiple counts of allegations of domestic violence -tendency evidence – child giving evidence – whether child compellable – court asked to “unscramble the egg” in respect of whether child compellable – question of inconsistent verdicts – reasons for some acquittals obscure - application of Liberato and Markuleski – cruelty to animal in presence of child

Legislation Cited:
Crimes Act, 1900
Criminal Procedure Act, 1986
Evidence Act, 1995
Prevention of Cruelty to Animals Act, 1979

Cases Cited:
Bell v Gunter, an unreported decision of 24 October 1997
Davis v R [2017] NSWCCA 257
Filip Black v R [2017] NSWDC 326
GS v R; Director of Public Prosecutions(NSW) vGS [2022] NSWCCA 65
KRM v The Queen (2001) 206 CLR 221
Liberato v The Queen (1985) 159 CLR 507
LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016
Markuleski v R (2001) 56 NSWLR 82
Mulvihill v R [2016] NSWCCA 259
Murray v R (1987) 11 NSWLR 11
Nudd v The Queen (2006) 80 ALJR 614
R v A1 (No. 2) [2019] NSWSC 663
R v Jovanovic (1997) 98 A Crim R 1
Roach v R [2019] NSWCCA 160
Sahartor v R [2020] NSWCCA 36
South v R [2007] NSWCCA 117

Category: Principal judgment
Parties: TF
Rex
Representation:
Counsel:
Ms T O’Rourke for the Appellant
Ms L Hanshaw for the Respondent Crown
Solicitors:
Mr Z Tankard

File Number(s): 2022/393601
Publication restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the appellant, or the complainant or the child WE or anything that might identify them.

Contents

Reasons for decision on appeal from the Local Court

The nature of an appeal
Counsel on appeal seeks to revisit forensic decisions made by Senior Counsel at the hearing before the Local Court
General Directions
Inferences
Onus and burden of proof
Murray Direction
KRM
Markuleski
Essential elements of the charges under consideration
Appellant gave evidence – directions including “Liberato”
Section 165 warning - WE
Complaint direction
Character
Motive to Lie
Tendency Evidence
Review of the Evidence
Consideration
Orders

Reasons for decision on appeal from the Local Court

The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the appellant, or the complainant or the child WE or anything that might identify them.

The appellant was found guilty of eight different offences that can be described generally as domestic violence offences. As is often the…

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 TF v The King

Details

AGLC: TF v The King [2024] NSWDC 542
Case: [2024] NSWDC 542
Decision Date: 22 November 2024

CaseChat Overview and Summary

The appeal was brought by TF against a decision of the Local Court, where TF was convicted on multiple counts of domestic violence and cruelty to an animal. The appeal sought to challenge the decision of the Local Court, arguing that junior counsel had not been able to revisit the forensic decisions made by experienced Senior Counsel. The appeal also raised issues around the admissibility of tendency evidence, the compellability of a child giving evidence, and the consistency of verdicts.

The court examined the legal issues raised, including whether the trial judge had erred in admitting certain evidence, whether the child was compellable to give evidence, and whether the verdicts were inconsistent. The court held that the appeal was dismissed in respect of Sequence 14, as the court found that the trial judge had not erred in his decision. However, the appeal was upheld in respect of Sequences 1, 2, 3, 11, 15, and 16, as the court found that the trial judge had erred in his decision, leading to an unsafe and unsatisfactory verdict.

The court held that the appeal was dismissed in respect of Sequence 14, as the court found that the trial judge had not erred in his decision. However, the appeal was upheld in respect of Sequences 1, 2, 3, 11, 15, and 16, as the court found that the trial judge had erred in his decision, leading to an unsafe and unsatisfactory verdict. The court held that the trial judge had failed to properly consider the evidence and had not given adequate reasons for his decision, leading to the appeal being upheld. The court found that the verdicts were inconsistent and that the trial judge had not properly considered the evidence in relation to the cruelty to an animal charge.

The final orders of the court were that the appeal was dismissed in respect of Sequence 14, but upheld in respect of Sequences 1, 2, 3, 11, 15, and 16. The court ordered a re-trial for the sequences in which the appeal was upheld. The court found that the trial judge had not properly considered the evidence and had not given adequate reasons for his decision, leading to the appeal being upheld. The court also found that the verdicts were inconsistent and that the trial judge had not properly considered the evidence in relation to the cruelty to an animal charge.

Orders

Orders of the court

Appeal Dismissed in respect of Sequence 14

Appeal Upheld in respect of Sequences 1, 2, 3, 11, 15, and 16

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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Citations

TF v The King [2024] NSWDC 542

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Longshaw [2023] NZHC 2902
Citation 1

…in a context explaining that the District Court (as successor to the Quarter Sessions) was obliged to hear the matter de novo . In R v Longshaw (1990) 20 NSWLR 554, Gleeson CJ (at 561) described Sweeney as holding that ‘ the appeal was by way of re-hearing, in the widest sense of the term, that is to say a hearing de…
GS v The the Queen; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
Citation 2 (Para 230)

…utor conceded that those charges could not be made out. The Prosecutor referred to the decision of GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65. That decision of the Court of Criminal Appeal was handed down on 1 April 2022. The allegations of choking that were before the Local Court are alleg…
Sahartor v The Queen [2020] NSWCCA 36
Citation 3 (Para 24)

…ed so far as s 18 of the Evidence Act and WE is concerned, I am required to essentially to use the vernacular and as used by Hamill J in Sahartor v R [2020] NSWCCA 36 at [30] “unscramble eggs”. Further, as Hamill J observed to do so is very difficult if not impossible.…
Roach v The Queen [2019] NSWCCA 160
Citation 4 (Para 41)

…the conduct of counsel are carefully controlled. See for e.g. Nudd v The Queen (2006) 80 ALJR 614, Davis v R [2017] NSWCCA 257 at [59] and Roach v R [2019] NSWCCA 160 at [154]-[157].…
R v A1 (No. 2) [2019] NSWSC 663
Citation 5 (Para 29)

…I am satisfied that on the authority of R v A1 (No. 2) [2019] NSWSC 663 at [82]-[83] that different areas of evidence are severable for the purposes of a ruling on an objection taken pursuant to s 18 of the Evidence Act .…
Neilan v Neilan [2019] NSWSC 66
Citation 6 (Para 30)

…I have considered all of the authorities to which I have been referred by counsel, i.e. R v A1 (No. 2) [2019] NSWSC 66, LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016 and Mulvihill v R [2016] NSWCCA 259. However, in the circumstances I am met with it seems to me the solution is to be found in the wo…
Filip Black v Regina [2017] NSWDC 326
Citation 7 (Para 10)

…At paragraph [3] of her written submissions the Crown Prosecutor refers to the decision of Filip Black v R [2017] NSWDC 326, a decision of my colleague his Honour Judge Scotting. With unfeigned respect to his Honour I gratefully adopt what he said at [10]-[16], namely:…
Davis v R [2017] NSWCCA 257
Citation 8 (Para 41)

…parties in a criminal trial are bound by the conduct of counsel are carefully controlled. See for e.g. Nudd v The Queen (2006) 80 ALJR 614, Davis v R [2017] NSWCCA 257 at [59] and Roach v R [2019] NSWCCA 160 at [154]-[157].…
Mulvihill v R [2016] NSWCCA 259
Citation 9 (Para 30)

…I have been referred by counsel, i.e. R v A1 (No. 2) [2019] NSWSC 66, LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016 and Mulvihill v R [2016] NSWCCA 259. However, in the circumstances I am met with it seems to me the solution is to be found in the wording of s 18(2), s 18(3) and s 18(4) taken with s 2…
Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Citation 10 (Para 91)

…equent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91].. [16] The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and sho…
Bandana v Director of Public Prosecutions [2016] NSWCA 140
Citation 11 (Para 10)

…e basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91].. [16] The term “error” has no precise meaning. It refers broadly to the…
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Citation 12

…r not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public P…
Dyason v Butterworth [2015] NSWCA 52
Citation 13 (Para 28)

…nary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].” [15] The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Dire…
LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016
Citation 14 (Para 30)

…red all of the authorities to which I have been referred by counsel, i.e. R v A1 (No. 2) [2019] NSWSC 66, LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016 and Mulvihill v R [2016] NSWCCA 259. However, in the circumstances I am met with it seems to me the solution is to be found in the wording of s 18(2)…
South v R [2007] NSWCCA 117
Citation 15 (Para 98)

…and have regard to the decision of R v Jovanovic (1997) 98 A Crim R 1 at 24 per Sperling J. I also note and have regard to the decision of South v R [2007] NSWCCA 117 particularly at [42].…
Charara v R [2006] NSWCCA 244
Citation 16 (Para 9)

…In Charara v The Queen (2006) 164 A Crim R 39 Mason P (Kirby J and Hoeben J (as his Honour then was) agreeing) said at [15]-[18]:…
Gianoutsos v Glykis [2006] NSWCCA 137
Citation 17

…erm, that is to say a hearing de novo’ . [16] Appeals to the District Court are no longer of this nature. Recently, in Gianoutsas v Glyki s [2006] NSWCCA 137, this Court held that the clear language of s18 precludes the District Court from treating an appeal of this nature as a hearing de novo (see the reasoning of…
Nudd v The Queen [2006] HCA 9
Citation 18

…ecutions & Anor [2011] NSWSC 1016 Markuleski v R (2001) 56 NSWLR 82 Mulvihill v R [2016] NSWCCA 259 Murray v R (1987) 11 NSWLR 11 Nudd v The Queen (2006) 80 ALJR 614 R v A1 (No. 2) [2019] NSWSC 663 R v Jovanovic (1997) 98 A Crim R 1 Roach v R [2019] NSWCCA 160 Sahartor v R [2020] NSWCCA 36 South v R [2007] NSWCCA 117 Cate…
Fox v Percy [2003] HCA 22
Citation 19

…o saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).”…
R v Markuleski [2001] NSWCCA 290
Citation 20 (Para 7)

…gically explained and therefore there are inconsistent verdict and therefore on the proper application of the principles enunciated in Markuleski v R (2001) 56 NSWLR 82 and Liberato v The Queen (1985) 159 CLR 507 there should be acquittals entered in respect of all matters.…
KRM v The Queen [2001] HCA 11
Citation 21 (Para 62)

…arge that I am considering, for more abundant caution I remind myself conformably with the decision of the High Court of Australia in KRM v The Queen (2001) 206 CLR 221, that because there are multiple charges there is a danger that I might reason that in respect of any one or more of the charges that the appellant w…
Liberato v The Queen [1985] HCA 66
Citation 22 (Para 7)

…consistent verdict and therefore on the proper application of the principles enunciated in Markuleski v R (2001) 56 NSWLR 82 and Liberato v The Queen (1985) 159 CLR 507 there should be acquittals entered in respect of all matters.…
Paterson v Paterson [1953] HCA 74
Citation 23

…y the magistrate who saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).”…
Bell v Stewart [1920] HCA 68
Citation 24

…to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).”…
Sweeney v Fitzhardinge [1906] HCA 73
Citation 25

…“This ‘all grounds’ appeal was often referred to as being by way of rehearing (see eg Sweeney v Fitzhardinge (1906) 4 CLR 716 at 728, 730), but always in a context explaining that the District Court (as successor to the Quarter Sessions) was obliged to hear the matter de novo . In R v Longshaw (1990) 20 NSWLR 554,…

Legislation Cited

Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention
Children’s Guardian Act 2019 (NSW)
1 mention
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Criminal Procedure Act 1986 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention
Interpretation Act 1987 (NSW)
1 mention

Medium Neutral Citation:	TF v R [2024] NSWDC 542
Hearing dates:	6 November 2024
Date of orders:	22 November 2024
Decision date:	22 November 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Appeal Dismissed in respect of Sequence 14 Appeal Upheld in respect of Sequences 1, 2, 3, 11, 15, and 16
Catchwords:	Appeal against decision of the Local Court – junior counsel seeks to revisit forensic decisions made by experienced Senior Counsel in the Local Court – multiple counts of allegations of domestic violence -tendency evidence – child giving evidence – whether child compellable – court asked to “unscramble the egg” in respect of whether child compellable – question of inconsistent verdicts – reasons for some acquittals obscure - application of Liberato and Markuleski – cruelty to animal in presence of child
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Evidence Act, 1995 Prevention of Cruelty to Animals Act, 1979
Cases Cited:	Bell v Gunter, an unreported decision of 24 October 1997 Davis v R [2017] NSWCCA 257 Filip Black v R [2017] NSWDC 326 GS v R; Director of Public Prosecutions(NSW) vGS [2022] NSWCCA 65 KRM v The Queen (2001) 206 CLR 221 Liberato v The Queen (1985) 159 CLR 507 LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016 Markuleski v R (2001) 56 NSWLR 82 Mulvihill v R [2016] NSWCCA 259 Murray v R (1987) 11 NSWLR 11 Nudd v The Queen (2006) 80 ALJR 614 R v A1 (No. 2) [2019] NSWSC 663 R v Jovanovic (1997) 98 A Crim R 1 Roach v R [2019] NSWCCA 160 Sahartor v R [2020] NSWCCA 36 South v R [2007] NSWCCA 117
Category:	Principal judgment
Parties:	TF Rex
Representation:	Counsel: Ms T O’Rourke for the Appellant Ms L Hanshaw for the Respondent Crown Solicitors: Mr Z Tankard
File Number(s):	2022/393601
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the appellant, or the complainant or the child WE or anything that might identify them.