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TL v The Queen

TL v The Queen

Case [2020] NSWCCA 265 19 October 2020

Criminal Liability

Appeal

Admissibility of Evidence

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TL v R [2020] NSWCCA 265
Hearing dates: 8 July 2020
Decision date: 19 October 2020
Before: Hoeben CJ at CL at [1];
Adamson J at [303];
Bellew J at [319]
Decision:
(1)   Leave is granted to extend the time within which the application for leave to appeal against conviction can be brought.
(2)   Leave to appeal against conviction is granted.
(3)   The appeal against conviction is dismissed.
(4)   Leave to appeal against sentence granted.
(5)   The appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) – s 18(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A
Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1), 10(1)(b)
Criminal Appeal Rules 1970 (NSW) – r 4
Evidence Act 1995 (NSW) – ss 65, 66, 97, 98, 101, 137, 165

Cases Cited:
Apps v R [2006] NSWCCA 290
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
ARS v R [2011] NSWCCA 266
Baines v R [2016] NSWCCA 132
Bin Sulaeman v R [2013] NSWCCA 283
Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26
Clarkson v R (2007) 209 FLR 387; [2009] NSWCCA 70
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Donohoe v R [2012] NSWCCA 176
Ellis v R (2003) 58 NSWLR 700; [2003] NSWCCA 319
FL v R [2020] NSWCCA 114
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hofer v R [2019] NSWCCA 244
Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
Ilievski v R; Nolan v R [2018] NSWCCA 164
IMM v The Queen (2016) 259 CLR 300; [2016] HCA 14
Kanaan and Ors v Regina [2006] NSWCCA 109
LN v R [2020] NSWCCA 131
LS v R [2020] NSWCCA 120
KT v R [2008] NSWCCA 51
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 (Mason J); [1986] HCA 40
Moodie v R [2020] NSWCCA 160
O’Keefe v R; R v O’Keefe [2009] NSWCCA 121
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
Pfitzner v R [2010] NSWCCA 314
Poniris v R [2014] NSWCCA 100
R v Abrahams [2013] NSWSC 952
R v Ambrosoli (2002) 55 NSWLR…

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 TL v The Queen

Details

AGLC: TL v The Queen [2020] NSWCCA 265
Case: [2020] NSWCCA 265
Decision Date: 19 October 2020

CaseChat Overview and Summary

The appeal was brought by the appellant against both his conviction and sentence for the murder of his two-year-old child. The matter was heard in the Court of Criminal Appeal in New South Wales. The appellant contested the conviction on several grounds, including the admission of hearsay and tendency evidence, and the absence of a direction to the jury pursuant to section 165 of the Evidence Act 1995 (NSW). Additionally, the appeal against sentence argued that the level of objective seriousness was improperly assessed, and that the sentence was manifestly excessive.

The court considered the admissibility of evidence and the direction to the jury. It found that the hearsay evidence was properly admitted as it was relevant to the identity of the offender, and that the tendency evidence did not unfairly prejudice the appellant. Furthermore, the court held that the trial judge's failure to direct the jury pursuant to section 165 of the Evidence Act 1995 (NSW) did not affect the safety of the conviction. In relation to the sentence appeal, the court determined that the level of objective seriousness was correctly assessed and that the sentence was not manifestly excessive.

The Court of Criminal Appeal dismissed both the conviction and sentence appeals. The appellant's conviction for the murder of his two-year-old child was upheld, and the sentence imposed was considered to be appropriate. The court found no error in the trial judge's handling of the evidence or direction to the jury, and no basis to reduce the sentence imposed. Consequently, the appellant's conviction and sentence remain unchanged.

Orders