Price J at [1]; Button J at [241]; Fagan J at [244]
Decision:
(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted. (3) Sentences imposed by Wells DCJ on 18 August 2015 are set aside. (4) In lieu thereof the appellant is sentenced as follows: (i) On count 1 to imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027. (ii) On count 2 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019. (iii) On count 3 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.
The appellant will be eligible to be released to parole on 14 June 2024.
Catchwords:
CRIMINAL LAW – appeal against conviction – whether trial judge’s refusal to discharge the jury occasioned a miscarriage of justice – whether a miscarriage was occasioned by appellant’s trial counsel’s failure to seek a forensic disadvantage direction – whether trial judge could give a forensic disadvantage direction on her own volition – whether a forensic disadvantage direction was required – whether verdicts of guilty unreasonable or unable to be supported – whether the Court should view the JIRT interviews and the appellant’s ERISP
[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.
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AGLC
TO v R [2017] NSWCCA 12
Case
[2017] NSWCCA 12
Decision Date
CaseChat Overview and Summary
In the case of TO v R, the appellant, TO, was convicted in the Supreme Court of Victoria of multiple offences, including rape, aggravated indecent assault, and deprivation of liberty. The case was subsequently appealed to the Court of Appeal, where the appellant challenged the conviction and the sentence. The appellant argued that the trial judge should have discharged the jury, that trial counsel should have sought a forensic disadvantage direction, and that the trial judge should have been able to give such a direction without counsel's request. The appellant also contended that the verdicts were unreasonable or unable to be supported, and that the Court of Appeal should view the JIRT interviews and the appellant's ERISP. The sentence was also appealed on the ground of the existence of a Muldrock error.
The central legal issues before the Court of Appeal were whether the trial judge's refusal to discharge the jury constituted a miscarriage of justice, whether the failure of the appellant's trial counsel to seek a forensic disadvantage direction resulted in a miscarriage of justice, whether the trial judge had the authority to give such a direction on her own volition, whether a forensic disadvantage direction was necessary, whether the guilty verdicts were unreasonable or unsupported, and whether the Court of Appeal should consider the JIRT interviews and the appellant's ERISP. Additionally, the court examined whether there was a Muldrock error in the sentencing.
The Court of Appeal found that there was no miscarriage of justice in the trial judge's refusal to discharge the jury, and that the appellant's trial counsel's failure to seek a forensic disadvantage direction did not result in a miscarriage of justice. The court held that the trial judge did not have the authority to give such a direction without counsel's request. It was determined that a forensic disadvantage direction was not necessary, as the jury had been adequately warned of the dangers of convicting on uncorroborated evidence. The guilty verdicts were found to be reasonable and supported by the evidence. The Court of Appeal declined to view the JIRT interviews and the appellant's ERISP, as they were not necessary for the resolution of the appeal. Regarding the sentence, the Court of Appeal found a Muldrock error and resentenced the appellant.
In conclusion, the Court of Appeal dismissed the appeal against conviction and allowed the appeal against sentence. The appellant's conviction was upheld, and the sentence was varied as per the court's direction.