New South Wales
Court of Criminal Appeal
CITATION: Tiwary v R [2008] NSWCCA 319 HEARING DATE(S): 16 October 2008
JUDGMENT DATE:
17 December 2008JUDGMENT 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 573PARTIES: Ram Puneet Tiwary (Appellant)
The CrownFILE 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
WEDNESDAY 17 DECEMBER 2008McCLELLAN CJ at CL
BLANCH J
HISLOP J
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…
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- AGLC
- Tiwary v The Queen [2008] NSWCCA 319
- Case
- [2008] NSWCCA 319
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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