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Tonari v R

Tonari v R

Case [2013] NSWCCA 232 18 October 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tonari v R [2013] NSWCCA 232
Hearing dates: 29 July 2013
Decision date: 18 October 2013
Before: Johnson J at [1];
Price J at [222];
RA Hulme J at [224]
Decision:
1. Appeal against conviction with respect to Counts 2 and 6, the s.61L Crimes Act 1900 counts is dismissed.
2. With respect to Counts 1, 3, 4, 5 and 7, the s.61J(1) Crimes Act 1900 counts, Ground 2A is upheld.
3. Pursuant to s.7(2) Criminal Appeal Act 1912, instead of allowing the appeal with respect to Counts 1, 3, 4, 5 and 7, substitute for the verdict found by the jury on each count, a verdict of guilty under s.61I Crimes Act 1900 of having sexual intercourse without consent.
4. Pursuant to s.12(2) Criminal Appeal Act 1912, remit the proceedings to the District Court so that the Appellant may be sentenced for the five offences under s.61I Crimes Act 1900 and the two offences under s.61L Crimes Act 1900.

Catchwords: CRIMINAL LAW - conviction appeal - convictions for aggravated sexual intercourse without consent under s.61J Crimes Act 1900 (five counts) and indecent assault under s.61L Crimes Act 1900 (two counts) - s.61J counts contained incomplete statement of circumstances of aggravation - counts alleged threats "to inflict actual bodily harm" upon complainant - counts omitted to allege "by means of an offensive instrument" - omission detected after verdicts - unsuccessful Crown application to amend indictment after verdicts - appeal against conviction - appeal heard prior to sentence - claim that indictment a nullity - held indictment not a nullity - claim of misdirection on s.61J counts - ground established given absence of legal and factual directions concerning "offensive instrument" component - claim of erroneous Markuleski direction and good character direction - grounds rejected - claim that verdicts unreasonable - held that s.61L verdicts reasonable - s.61J verdicts cannot stand given established misdirection - whether substitute verdicts of guilty of having sexual intercourse without consent under s.61I Crimes Act 1900 should be returned on s.61J counts - application of s.7(2) Criminal Appeal Act 1912 - verdicts of guilty of s.61I offences returned on s.61J counts - proceedings remitted to District Court for sentence for s.61I and s.61L offences
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited:
Abbosh v R [2011] NSWCCA 265
Alseedi v R [2009] NSWCCA 185
Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86
Boujaoude v R [2008] NSWCCA 35; 72 NSWLR 85
Chanthaboury v R [2007] NSWCCA 290; 176 A Crim R 438
Doja v R [2009] NSWCCA 303; 198 A Crim R 349
Geggo v R [2013] NSWCCA 7
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Kahatapitiye v R [2004] WASCA 189; 146 A Crim R 542
Lodhi v R

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 Tonari v R

Details

AGLC: Tonari v R [2013] NSWCCA 232
Case: [2013] NSWCCA 232
Decision Date: 18 October 2013

CaseChat Overview and Summary

In Tonari v R, the appellant, Tonari, sought to appeal his convictions under the Crimes Act 1900, specifically for aggravated sexual intercourse without consent and indecent assault. The convictions were based on five counts of aggravated sexual intercourse without consent under section 61J and two counts of indecent assault under section 61L. The case was heard in the High Court of Australia, where Tonari argued that his convictions were flawed due to defects in the indictment and alleged misdirections by the trial judge. The Crown argued that the convictions should stand despite the defects.

The central legal issues revolved around the validity of the indictment and whether the trial judge's directions to the jury were adequate and accurate. Tonari's appeal focused on the insufficiency of the indictment, which did not include the specific aggravating factor of an "offensive instrument" as required by section 61J. The omission was not identified until after the verdicts were delivered. Additionally, Tonari argued that the trial judge misdirected the jury on the elements of section 61J and provided an erroneous Markuleski direction and a direction concerning good character. Lastly, Tonari contended that the verdicts were unreasonable.

The High Court found that the indictment was not a nullity but was flawed due to the omission of the "offensive instrument" component. This omission constituted a misdirection, as the jury was not properly guided on this crucial element. The court rejected other grounds of appeal concerning the Markuleski direction and good character direction, finding no error. The verdicts on the indecent assault charges were deemed reasonable, but the verdicts on the aggravated sexual intercourse without consent charges could not stand due to the established misdirection. The court applied section 7(2) of the Criminal Appeal Act 1912 to return verdicts of guilty of having sexual intercourse without consent under section 61I for the counts in question. The case was remitted to the District Court for sentencing on the corrected offences.

Orders