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Timbery v Regina

Timbery v Regina

Case [2007] NSWCCA 355 18 December 2007

Admissibility of Evidence

Expert Evidence

Criminal Law

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Reported Decision: 180 A Crim R 232

New South Wales

Court of Criminal Appeal

CITATION: Timbery v Regina [2007] NSWCCA 355

HEARING DATE(S): 12 and 28 September 2007

JUDGMENT DATE:
18 December 2007

JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3

DECISION: See para 214

CATCHWORDS: Multiple offences charged. Judge incorrectly effectively withdrawing issue as to sexual intercourse occurring in circumstances alleged and effectively limiting issue to one of consent. Faulty directions as to corroboration and supporting evidence. Directions as to desirability of reaching agreement exceed what is permissible. Murray directions incorrectly limited - impermissible conduct by Crown prosecutor not causing a miscarriage of justice. Alleged failure of appellant's counsel not established and no miscarriage.

LEGISLATION CITED: Evidence Act

CASES CITED: Black v The Queen (1993) 179 CLR 44
Conway v R (2000) FCR 204
Conway v The Queen (2002) 209 CLR 203
Crampton v R (2000) 206 CLR 161
Donney v The Queen (1990) 171 CLR 207
Kaifoti v R [2006] NSWCCA 186
Libke v The Queen (2007) HCA 30
Longman v The Queen (1980) 168 CLR 79
MFA v The Queen (2002) 213 CLR 606
Mackenzie v The Queen (1996) 190 CLR 348
Palmer v The Queen (1998) 193 CLR 1
Pavitt v R [2007] NSWCCA 88
R v Baskerville [1916] 2 KB 658
R v Booty unrep NSWCCA 19/12/94
R v Gilbert unrep NSWCCA 10/12/98
R v Jovanic (1997) 42 NSWLR 520
R v Leak [1969] SASR 172
R v Livermore [2006] NSWCCA 334
R v Markuleski [2001] 52 NSWLR 82
R v R(AJ) (1994) 94 CCC (3d) 168
R v Uhrig (unrep NSW CCA 24/10/96
Tully v The Queen (2007 ALJR 391)
McKechnie v R [2006] NSWCCA 13
R v GPP (2001) 129 A Crim R 1
R v Zorad (1990) 19 NSWLR 91
R v Li (2003) 140 A Crim R 386
R v Murray (1987) 11 NSWLR 12
R v V (1998) 100 A Crim R 488

PARTIES: Joseph Timbery v Regina

FILE NUMBER(S): CCA 2006/4941

COUNSEL: (A) Mr H Dhanji
(C) Mr P Miller

SOLICITORS: (A) Adamson Solicitors
(C) Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1115

LOWER COURT JUDICIAL OFFICER: Donovan DCJ

LOWER COURT DATE OF DECISION: 10/08/06

2006/4941

MASON P

ADAMS J

SMART AJ

Tuesday, 18 December 2007

Joseph Anthony TIMBERY v REGINA

JUDGMENT

1. MASON P: Subject to one ultimately immaterial qualification, I agree with Smart AJ, I would have applied r4 in relation to Appeal Ground 4.

2. ADAMS J: I agree with Smart AJ.

3. SMART AJ: Joseph Anthony Timbery appeals against his conviction of 12 offences being two charges of malicious wounding, one charge of maliciously inflict grievous bodily harm, one charge of assault occasioning actual bodily harm, seven charges of aggravated sexual intercourse without consent (involving maliciously inflict actual bodily harm) and one charge of sexual intercourse without consent. He was found not guilty of eleven charges being eight charges of aggravated sexual assault without consent,…

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 Timbery v Regina

Details

AGLC: Timbery v Regina [2007] NSWCCA 355
Case: [2007] NSWCCA 355
Decision Date: 18 December 2007

CaseChat Overview and Summary

In the case of Timbery v Regina, the appellant was convicted of various offences, including indecent assault and false imprisonment. The matter was heard in the High Court of Australia. The primary dispute centred on the correctness of the judge’s handling of the case, particularly in relation to the directions given to the jury and the adequacy of legal counsel. The appellant argued that the judge's instructions and conduct throughout the trial amounted to a miscarriage of justice, impacting his right to a fair trial.

The legal issues before the court were whether the judge's handling of the case, including the withdrawal of certain issues and the instructions regarding corroboration and supporting evidence, constituted a miscarriage of justice. Additionally, the court examined whether the judge's directions to the jury exceeded permissible bounds and if there was any misconduct by the Crown prosecutor that warranted a new trial. The adequacy of the appellant's legal representation was also scrutinised.

The court found that although the judge's directions contained some errors, they did not amount to a miscarriage of justice. The Murray directions, which related to the corroboration of evidence, were not applied correctly, but the misapplication did not prejudice the appellant to the extent of causing a miscarriage of justice. The court further concluded that the conduct of the Crown prosecutor, while not ideal, did not result in a miscarriage of justice. The appellant's counsel was found to have acted competently, and there was no basis to conclude that their actions contributed to a miscarriage of justice.

The final orders of the court were that the appeal was dismissed, and the convictions were upheld. The court held that despite the errors in the trial, they did not prejudice the appellant to the extent that a miscarriage of justice occurred.

Orders