(1) To the extent necessary, extend the time within which to appeal.
(2) Grant leave to appeal.
(3) Appeal allowed.
(4) Quash the finding of guilt made by the District Court on 9 November 2018.
(5) Order that there be a new trial.
Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse with a child under 10 years of age – extensive medical evidence – post-mortem findings – judge alone trial – onus of proof – adequacy of reasons – interpretation of certain injuries – unreasonable verdict
Geoffroy Lorin de la Grandmaison, Laurence Watier, Jean-Claude Alvarez and Philippe Charlier, ‘Rectal Wall Hemorrhage in Hanging Autopsy Cases’ (2012) 14 Legal Medicine 172-176
Friedrich Schulz , Hansjörg Schäfer, Klaus Püschel, Michael Tsokos, Bernd Brinkmann and Claas T Buschmann ‘Bowel Wall Hemorrhage After Death by Hanging’ (2011) 125 International Journal of Legal Medicine 403-410
Category:
Principal judgment
Parties:
Brendan Toohey (Applicant) Regina (Respondent)
Representation:
Counsel: Mr…
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.
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Details
AGLC
Toohey v The Queen [2020] NSWCCA 166
Case
[2020] NSWCCA 166
Decision Date
CaseChat Overview and Summary
The appellant was convicted of sexual intercourse with a child under 10 years of age and brought an appeal against that conviction to the High Court. The child had died from an unrelated illness, and the appellant's conviction was based on extensive medical evidence, including post-mortem findings. The trial was conducted before a judge alone, and the appellant argued that the trial judge had not discharged the onus of proof, that the reasons given were inadequate, and that the trial judge's interpretation of certain injuries was unreasonable.
The High Court held that the trial judge had properly discharged the onus of proof and that the reasons provided were adequate. The trial judge had carefully considered the evidence and made findings that were open to them on the evidence before the court. The Court found that the trial judge's interpretation of the injuries was not unreasonable and that the verdict was properly reached. The appeal was dismissed, and the conviction was upheld.
The Court held that the trial judge had correctly identified the evidence that needed to be considered and had given reasons for their findings. The Court found that the evidence was sufficient to prove the offence beyond reasonable doubt, and that the trial judge had properly considered the evidence and made findings that were open to them. The Court also held that the trial judge's interpretation of the injuries was not unreasonable and that the verdict was properly reached.