Tiwary v R - [2012] NSWCCA 193

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tiwary v R [2012] NSWCCA 193
Hearing dates: 20, 24 July 2012
Decision date: 10 September 2012
Before: Bathurst CJ at [1]
Allsop P at [1]
Fullerton J at [1]
Decision:
Orders made on 26 July 2012. Reasons delivered on 10 September 2012.
1. Extend the time for filing the notice of appeal up to and including the day on which it was filed.
2. Appeal upheld.
3. Conviction of the murder of Chow Lyang Tay quashed.
4. Conviction of the murder of Poh Chuan Tan quashed.
5. In lieu thereof verdicts of acquittal be entered on each count.

Catchwords: CRIMINAL LAW - murder - appellant convicted of killing two flatmates with baseball bat - forensic and other evidence sufficient to support rational hypotheses consistent with innocence - reasonable doubt as to guilt notwithstanding inconsistencies and implausibilities in appellant's account - verdict unreasonable or insupportable having regard to the evidence - convictions quashed - no retrial ordered
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act 1995 (NSW), s 137
Cases Cited: Kurdi v R [2011] NSWCCA 179
M v R [1994] HCA 63; 181 CLR 487
SKA v R [2011] HCA 13; 243 CLR 400
Tiwary v R [2008] NSWCCA 319
Category: Principal judgment
Parties: Ram Puneet Tiwary (Appellant)
The Crown (Respondent)
Representation: Mr D Dalton SC (Appellant)
Mr P Ingram SC (Respondent)
John B Hajje & Associates (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2005/3786
Decision under appeal

Citation:

R v Tiwary [2009] NSWSC 1415

Date of Decision:

2009-12-17 00:00:00

Before:

Johnson J

File Number(s):

SC 2005/3786

Judgment

THE COURT: On 26 July 2012, the Court made orders extending time for filing the notice of appeal, allowing the appeal, quashing the convictions of the appellant for the murders of Chow Lyang Tay and Poh Chuan Tan and ordering the entry of verdicts of acquittal on the counts of murder of Mr Tay and Mr Tan. Leave to appeal (the matter not being a question of law only) was granted at the beginning of the hearing. These are the reasons of the Court for those orders.

There were two grounds to the appeal. The first (which we would reject) asserted an error in the learned primary judge (Johnson J) failing to exclude certain expert evidence, pursuant to the Evidence Act 1995 (NSW), s 137. The second (which we would allow) asserted that the jury verdicts (which were by majority) were unreasonable and cannot be supported having regard to the evidence, for the purposes and within the meaning of the Criminal Appeal Act 1912 (NSW), s 6(1).

It is convenient to deal with the first ground after we have considered the evidence and the issues that arise on the evidence for the purposes of determining the second ground of appeal.

The task for this Court

The principles upon which this Court should act under the Criminal Appeal Act, s 6(1), are authoritatively…

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 Tiwary v R

Details

AGLC: Tiwary v R [2012] NSWCCA 193
Case: [2012] NSWCCA 193
Decision Date: 10 September 2012

CaseChat Overview and Summary

The appellant, Mr Tiwary, was convicted of the murder of two of his flatmates in a violent incident involving a baseball bat. The case was heard and determined by the High Court of Australia. The central issue before the court was whether the trial judge's verdict was unreasonable or unsupported by the evidence. The appellant argued that there were inconsistencies and implausibilities in the evidence presented against him, and that a reasonable doubt as to his guilt remained. The court was required to examine whether the evidence, when viewed as a whole, was sufficient to support a rational hypothesis consistent with the appellant's innocence.

The High Court found that the trial judge had failed to give sufficient weight to the inconsistencies and implausibilities in the evidence against the appellant. The court held that the evidence, while sufficient to support a rational hypothesis consistent with guilt, was also capable of supporting a rational hypothesis consistent with innocence. The court determined that the verdict was unreasonable or unsupported by the evidence, as the trial judge had not adequately considered the reasonable doubt as to the appellant's guilt. Consequently, the court quashed the appellant's convictions and determined that no retrial should be ordered.

Orders