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 counselLegislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 10
Criminal Appeal Rules, r 3A, 3B
Evidence Act 1995 (NSW), ss 53, 54Cases Cited: Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Karamat v The Queen [1956] AC 256
Continue reading Tongahai v The Queen
Sign in free to access the full text
- AGLC
- Tongahai v The Queen [2014] NSWCCA 81
- Case
- [2014] NSWCCA 81
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.