Tierney v The Queen - [2016] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tierney v R [2016] NSWCCA 144
Hearing dates: 15 July 2016
Date of orders: 15 July 2016
Decision date: 15 July 2016
Before: Basten JA at [1]
R A Hulme J at [2]
Adamson J at [3]
Decision:
(1) Grant the applicant leave to appeal against conviction.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeal against conviction for offence of break enter and steal in company – whether verdict was unreasonable having regard to the evidence at trial – jury entitled not to accept accused’s version of events – whether trial judge erred in directions about withdrawal from joint criminal enterprise – no error established – leave to appeal granted but appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 112(2)
Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules (NSW), r 4
Cases Cited: M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Sully [2012] SASCFC 9; 112 SASR 157
R v Tietie (1988) 34 A Crim R 438
R v Whitehouse [1941] 1 DLR 683
SKA v The Queen [2011] HCA 13; 243 CLR 400
White v Ridley (1978) 140 CLR 342
Category: Principal judgment
Parties: Clayton Tierney (Appellant)
Regina (Crown)
Representation:
Counsel:
P Lowe (Appellant)
E Balodis (Crown)
Solicitor:
Saba Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/72543
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 April 2015

Before:

Flannery DCJ

File Number(s):

2014/72543

Judgment

BASTEN JA: I agree with the reasons given by Adamson J.
R A HULME J: I agree with Adamson J.
ADAMSON J: At the conclusion of the hearing of this appeal on 15 July 2016, the Court ordered that leave be granted to the appellant to appeal from his conviction and that the appeal be dismissed. My reasons for concurring with these orders are as follows.
On 29 October 2014, following a trial by jury, the appellant, Clayton Tierney, was convicted of an offence under s 112(2) of the Crimes Act 1900 (NSW). The offence was that on 14 July 2013 he did, while in the company of Jason Tierney, break and enter the dwelling house of Leanne Condon at an address in Roseville and did commit a serious indictable offence there, namely, stealing items of jewellery and $250 in cash, which was the property of Ms Condon.
The appellant appealed against his conviction on two grounds: first, that the verdict was unreasonable and could not be supported having regard to the evidence; and secondly, that the trial judge erred in directing the jury on the issue of withdrawal from the joint criminal enterprise. Leave was required in respect of the first ground under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave was required in respect of the second ground under r 4 of the Criminal Appeal Rules as…

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 Tierney v The Queen

Details

AGLC: Tierney v The Queen [2016] NSWCCA 144
Case: [2016] NSWCCA 144
Decision Date: 15 July 2016

CaseChat Overview and Summary

The appellant, Tierney, was convicted of breaking and entering and stealing in company. The Crown alleged that the appellant, along with others, forcibly entered a premises and stole property. The case was heard in the High Court of Australia, which granted leave to appeal against the conviction but ultimately dismissed the appeal. The primary issue before the court was whether the verdict was unreasonable in light of the evidence presented at trial. The appellant argued that the jury should have accepted his version of events, which was that he had not participated in the crime. However, the court found that the jury was entitled to reject the appellant's account of events if they found it to be implausible or inconsistent with the evidence.

The court also considered whether the trial judge had erred in his directions to the jury regarding the appellant's withdrawal from the joint criminal enterprise. The appellant argued that the trial judge had not properly explained the legal principles relating to withdrawal from a joint criminal enterprise. However, the court found that the trial judge's directions were accurate and that there was no error in the judge's handling of this aspect of the trial. The court held that the jury was entitled to consider all of the evidence before them and to reach their own conclusions about the appellant's guilt or innocence. The court found that the verdict was not unreasonable and that the appeal should be dismissed.

Orders