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Tongahai v The Queen

Tongahai v The Queen

Case [2014] NSWCCA 81 15 May 2014

Appeal

Jurisdiction

Limitation Periods

Miscarriage of Justice

Admissibility of Evidence

Right to Attend

Criminal Law

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Tongahai v R

Medium Neutral Citation: [2014] NSWCCA 81

Hearing Date(s): 09 April 2014

Decision Date: 15 May 2014

Before: Basten JA at [1];
Fullerton J at [45];
Davies J at [46]

Decision:
(1) To the extent that the applicant requires an extension of time within which to seek leave to appeal, grant the applicant an extension up to and including 18 October 2013 for the filing of the notice of appeal.

(2) Reject as inadmissible the evidence of the applicant and Mr Sutherland with respect to the circumstances in which the trial judge directed that there be a view to be undertaken in the absence of the accused.

(3) Refuse leave to appeal against the applicant's conviction on the charge of murder.

Catchwords: APPEAL - criminal - miscarriage of justice - whether accused misled by trial judge - accused represented by counsel - whether consent to view in his absence was a true and informed consent - whether trial miscarried

CRIMINAL LAW - appeal against conviction for murder - application for extension of time - notice of intention to appeal filed within time - numerous extensions of time granted while accused sought legal aid - notice expired - request for extension of time after expiration refused by deputy registrar - whether an extension of time should be granted - Criminal Appeal Act 1912 (NSW), s 10; Criminal Appeal Rules rr 3A, 3B

CRIMINAL LAW - trial procedure - view - attendance of accused - trial judge directed a view in absence of the accused - whether trial judge misled accused - whether accused properly advised by counsel - whether trial miscarried - right to attend

CRIMINAL LAW - appeal - trial - miscarriage of justice - conduct of defence counsel -- accused expressed desire to attend view - trial judge used language that might suggest accused had no right to attend - counsel obtained further instructions that view could proceed without the accused - allegation that counsel misled accused in confirming there was no right to attend - no incompetence of counsel alleged - accused bound by the conduct of counsel - whether evidence of communication between counsel and accused admissible

EVIDENCE - criminal - direction for view - jury entitled to draw inferences from view - absence of accused, represented by counsel - Evidence Act 1995 (NSW), ss 53, 54

EVIDENCE - view taken in absence of accused - challenge to consent to be absent from view - whether subject belief of accused relevant - whether advice given by counsel relevant - no challenge to competence of counsel

Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 10
Criminal Appeal Rules, r 3A, 3B
Evidence Act 1995 (NSW), ss 53, 54

Cases Cited: Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Karamat v The Queen [1956] AC 256

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 Tongahai v The Queen

Details

AGLC: Tongahai v The Queen [2014] NSWCCA 81
Case: [2014] NSWCCA 81
Decision Date: 15 May 2014

CaseChat Overview and Summary

Tongahai was convicted of murder and appealed against the conviction, contending that the trial miscarried because he was misled by the trial judge and his counsel. The accused argued that the trial judge misled him into believing that he had no right to attend the view and that his counsel misled him into believing that the view could proceed in his absence. The accused contended that the trial miscarried because of these alleged misdirections and that his conviction should be quashed. The Court of Criminal Appeal considered whether the accused was misled by the trial judge and his counsel, and whether the absence of the accused from the view was a true and informed consent. The Court also considered whether the accused was bound by the conduct of his counsel and whether the evidence of communication between counsel and accused was admissible.
The Court held that the accused was not misled by the trial judge or his counsel. The Court found that the accused was properly advised by his counsel that he did not have a right to attend the view and that the view could proceed in his absence. The Court held that the accused was bound by the conduct of his counsel and that the evidence of communication between counsel and accused was not admissible. The Court also found that the absence of the accused from the view was a true and informed consent. The Court held that the trial did not miscarry and dismissed the appeal against conviction. The Court further held that an extension of time should be granted for the notice of appeal to be filed because the accused had been seeking legal aid and the notice had expired while he was seeking legal aid. The Court ordered that the notice of appeal be received as filed on the date it was actually filed.

Orders