Brereton JA at [1]; N Adams J at [119]; Cavanagh J at [312].
Decision:
Conviction appeal
(1) Grant leave to the applicant to appeal against his conviction.
(2) Dismiss the appeal.
Sentence appeal
(1) Grant leave to the applicant to appeal against the sentence imposed on 20 May 2020 in the District Court.
(2) Dismiss the appeal.
Catchwords:
CRIME – Appeals – Appeal against conviction –Unresponsive disclosure by witness that accused in custody – Whether refusal to discharge jury a miscarriage of justice – Requirement of material irregularity for miscarriage to arise – Significance of direction given to jury – No prejudice to applicant – No miscarriage of justice – No error in discretionary decision not to discharge jury
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Whether open to jury to be satisfied beyond reasonable doubt that applicant knew complainants were not of requisite age or did not have honest and reasonable belief that they were of age – Jury entitled to reach this conclusion
CRIME – Appeals – Appeal against sentence – No error in sentencing judge making adverse findings re insight and rehabilitation – Inapplicable standard non-parole period applied by sentencing judge – Error giving rise to need to re-sentence – Crown submitted that the offender be re-sentenced on a more adverse factual basis than at first instance – Knowledge of the victims’ ages – “Exceptional case” – Procedural fairness extended to both parties – No other (lesser) sentence warranted – Appeal dismissed
[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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Details
AGLC
Tomlinson v R [2022] NSWCCA 16
Case
[2022] NSWCCA 16
Decision Date
CaseChat Overview and Summary
The appellant, Tomlinson, brought an appeal against his conviction and sentence for a series of child sex offences. The appeal was heard by the High Court of Australia. The primary issue before the Court was whether the refusal of the trial judge to discharge the jury constituted a miscarriage of justice. This was due to an unresponsive disclosure by a witness that the accused was in custody. The Court was also required to determine if the jury's verdict was unreasonable and whether there was an error in the sentencing judge's adverse findings regarding the appellant's insight and rehabilitation, as well as the non-parole period applied.
The Court found that there was no miscarriage of justice as the unresponsive disclosure did not result in a material irregularity that prejudiced the appellant. The jury was properly directed, and the appellant was not prejudiced by the disclosure. The Court also held that it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the complainants were not of the requisite age or did not have an honest and reasonable belief that they were of age. The jury was entitled to reach this conclusion, and therefore, the verdict was not unreasonable. Regarding the sentencing, although the sentencing judge applied an inapplicable standard non-parole period, the Court found that the error did not warrant a lesser sentence. The Crown submitted that the offender should be re-sentenced on a more adverse factual basis than at first instance, which was deemed appropriate by the Court.
The appeal was dismissed, and the conviction and sentence were upheld. The Court found that procedural fairness had been extended to both parties, and there was no basis for a lesser sentence. The appellant's appeal against his conviction and sentence was therefore unsuccessful.