Tikomaimaleya v The Queen - [2017] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tikomaimaleya v R [2017] NSWCCA 214
Hearing dates: 3 July 2017
Decision date: 01 September 2017
Before: Simpson JA at [1]; Harrison J at [101]; Davies J at [104]
Decision:
(1) Leave granted to rely on Ground 3 of the Notice of Appeal.
(2) Appeal against conviction dismissed.
Catchwords:
EVIDENCE – witness evidence – children’s evidence – whether trial judge erred in allowing the complainant to give sworn evidence

EVIDENCE – witness evidence – children’s evidence – where examination-in-chief given by a complainant in a recorded interview with police – whether witness required to be competent at the time of the interview
CRIME – appeal – whether verdict unreasonable or unsupported by evidence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
Crimes Act 1900 (NSW), s 66A
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 1
Criminal Appeal Act 1912 (NSW), ss 5, 7
Criminal Procedure Act 1986 (NSW), ss 306U, 306V, Ch 6 Pt 6
Evidence Act 1995 (NSW), ss 12, 13, 21, 59, 61, Ch 3, Pt 3.2
Cases Cited: Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MK v R [2014] NSWCCA 274
SKA v R; R v SKA [2009] NSWCCA 186
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
Category: Principal judgment
Parties: Talemo Tikomaimaleya (Appellant)
Regina (Respondent)
Representation:
Counsel:
W C Terracini SC (Appellant)
N J Adams (Respondent)
Solicitors:
Archbold Legal (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/386241
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

18 June 2015

Before:

King DCJ

File Number(s):

2013/386241

HEADNOTE

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

On 27 February 2015 the appellant was convicted of one count of sexual intercourse with a child under the age of 10 years. He was later sentenced to imprisonment for 9 years, with a non-parole period of 6 years.

The appellant was the husband of a child care centre operator, who operated the service from their home. The complainant was between 4 and 5 years old at the time of the offence, and attended the child care centre twice a week. The complainant complained to her father, and later her mother, that one day when she had been asleep on a lounge watching television, the appellant sat next to her and inserted his finger into her vagina. Her parents notified police, and the complainant was interviewed. The interview was…

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 Tikomaimaleya v The Queen

Details

AGLC: Tikomaimaleya v The Queen [2017] NSWCCA 214
Case: [2017] NSWCCA 214
Decision Date: 01 September 2017

CaseChat Overview and Summary

The case of Tikomaimaleya v The Queen involved the appellant, Tikomaimaleya, appealing against his conviction for serious sexual offences against two young children. The trial judge allowed the complainants to give sworn evidence, which was based on recorded interviews with the police. The central issue was whether the trial judge erred in permitting the children to provide sworn testimony, particularly when the examination-in-chief was conducted during recorded police interviews. The court needed to determine whether the children were competent to give sworn evidence at the time of the interviews and whether their recorded statements could be considered as sworn evidence.

The court examined the nature of the evidence provided by the children and the legal standards required for such testimony. It noted that for evidence to be admissible, the witness must be competent at the time the statement is made. The court considered the circumstances under which the interviews were conducted and whether the children understood the concept of telling the truth and the consequences of lying. The court also explored whether the trial judge correctly applied the principles set out in previous case law regarding the admissibility of recorded police interviews as sworn evidence. Ultimately, the court found that the trial judge did not err in allowing the children to give sworn evidence based on the recorded interviews, as the children demonstrated the necessary understanding and competence.

The appeal was dismissed by the court, which held that the verdict was not unreasonable and was supported by the evidence. The court concluded that the trial judge had appropriately assessed the competency of the child witnesses and that the recorded interviews constituted valid sworn evidence. The decision reaffirmed the principles regarding the admissibility of recorded police interviews as sworn evidence, ensuring that the rights of child witnesses are protected while allowing their testimonies to be used in criminal trials.

Orders