Tiwary v The Queen - [2008] NSWCCA 319

New South Wales
Court of Criminal Appeal

CITATION: Tiwary v R [2008] NSWCCA 319

HEARING DATE(S): 16 October 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Blanch J at 149; Hislop J at 150

DECISION: 1. Appeal upheld
2. Conviction quashed
3. New trial ordered.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - misdirection and non-direction - presentation of defence case and Crown case and review of evidence - circumstantial case - consciousness of guilt - Crown prosecutor's address on lies as consciousness of guilt - whether trial judge adequately directed jury on consciousness of guilt - whether trial judge adequately directed jury on evidence of blood on appellant's feet - whether trial miscarried - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - unreasonable or insupportable verdict - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - application to reduce sentence - not appropriate to consider sentencing issues as new trial ordered

CATEGORY: Principal judgment

CASES CITED: Edwards v R (1993) 178 CLR 193
Shepherd v R (1991) 170 CLR 573

PARTIES: Ram Puneet Tiwary (Appellant)
The Crown

FILE NUMBER(S): CCA 2005/3786

COUNSEL: T A Game SC (Appellant)
L Babb SC/M Rabsch (Crown Advocate)

SOLICITORS: Giddy & Crittenden (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1899

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 6 November 2006

2005/3786

McCLELLAN CJ at CL
BLANCH J
HISLOP J
WEDNESDAY 17 DECEMBER 2008

TIWARY, Ram Puneet v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following trial of two counts of murder. The victims were his flatmates, Chow Lyang Tay and Poh Chuan Tan. Their deaths occurred on 15 September 2003 following a violent attack involving a blunt instrument (possibly a baseball bat) and a knife in the case of Tay and a baseball bat and knife in the case of Tan.

2 The appellant was sentenced to a term of imprisonment of 25 years for the murder of Tay and to life imprisonment for the murder of Tan. He appeals against his conviction and seeks leave to appeal against his sentence.

3 There are three grounds of appeal against conviction. The first two grounds are directed to the judge’s directions and issues relating to lies and blood stains. The third ground challenges the conviction as being unreasonable or not supported by the evidence.

Some preliminary facts

4 The appellant and the two deceased were students at the University of New South Wales. They lived together, each in a separate bedroom, in premises a short distance from the Kensington campus. The appellant was studying engineering on a scholarship from the Singapore Army of which he was a member. He 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 Tiwary v The Queen

Details

AGLC: Tiwary v The Queen [2008] NSWCCA 319
Case: [2008] NSWCCA 319
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the case of Tiwary v The Queen, the appellant, Mr Tiwary, was convicted of murder by a jury in the Supreme Court of Queensland. The case was appealed to the High Court of Australia, which considered various grounds for a new trial. The primary dispute was whether the trial was conducted fairly and if the jury was properly directed on key issues. The Court was required to decide whether the trial judge adequately directed the jury on the concept of consciousness of guilt, particularly in relation to the Crown prosecutor's address on lies as evidence of such guilt. Additionally, the Court examined whether the trial judge adequately directed the jury on the significance of blood found on the appellant's feet.

The Court found that the trial judge's directions to the jury regarding consciousness of guilt were inadequate, as they did not accurately reflect the legal principles applicable to such evidence. The trial judge's directions did not sufficiently highlight the need for the jury to be satisfied beyond reasonable doubt that any observed behaviour was indicative of consciousness of guilt, rather than being attributable to other innocent explanations. The Court also found that the trial judge did not adequately direct the jury on the evidence of blood on the appellant's feet, failing to properly consider its relevance and potential alternative explanations. These errors led to a miscarriage of justice, warranting a new trial.

The High Court of Australia ordered a new trial for Mr Tiwary, as it was found that the trial had miscarried due to the inadequate jury directions. The Court did not consider the sentencing issues as a new trial had been ordered. The Court held that the appeal against the conviction was successful on the grounds of misdirection and non-direction of the jury, and that the verdict was unreasonable or insupportable in light of the trial errors.

Orders