Toohey v The Queen

Case [2020] NSWCCA 166


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Toohey v R [2020] NSWCCA 166
Hearing dates: 18 March 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Before: Leeming JA and Rothman J at [1]
N Adams J at [32]
Decision:

(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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), 15A

Crimes Act 1900 (NSW), s 61HA, s 66A(2)

Criminal Appeal Act 1912 (NSW), s 5(1), s 5D

Criminal Procedure Act 1986 (NSW), s 131, s 132, s 133

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Alchin v Daley [2009] NSWCA 418

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

CJ v Regina [2012] NSWCCA 258

Decision restricted [2017] NSWSC 846

DL v The Queen [2018] HCA 26; 92 ALJR 636

Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1999] HCA 68

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Hopgood v R [2019] NSWCCA 246

Lane v R [2013] NSWCCA 317

Mifsud v Campbell (1991) 21 NSWLR 725

O'Leary v The King (1946) 73 CLR 566; [1946] HCA 44

R v Toohey [2019] NSWCCA 182

R v Toohey (No 2) [2017] NSWSC 1217

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Towney v R [2018] NSWCCA 65

Trevor Essex v R [2013] NSWCCA 11

W v R [2014] NSWCCA 1

Wade v R [2018] NSWCCA 85

Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174

Wood v The Queen (2012) 84 NSWLR 58; [2012] NSWCCA 21

Texts Cited:

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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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