TWL v The Queen (No 2) - [2012] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TWL v R (No 2) [2012] NSWCCA 93
Hearing dates: On the papers
Decision date: 15 May 2012
Before: Macfarlan JA at [1]
RA Hulme J at [8]
Garling J at [9]
Decision:
The application is dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - unreasonable verdict ground - application of SKA v The Queen [2011] HCA 13; 243 CLR 400 where order for retrial made - whether necessary or appropriate for Court to express view on issue of appellant's guilt
Cases Cited: Almeddine v R [2012] NSWCCA 63
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Procedural and other rulings
Parties: TWL (Appellant)
Regina (Respondent)
Representation: Counsel:
H Dhanji SC (Appellant)
M M Cinque (Respondent)
Solicitors:
Legal Aid Commission NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/51303
Decision under appeal

Citation:

Regina v TWL

Date of Decision:

2011-04-20 00:00:00

Before:

Coolahan DCJ

File Number(s):

2009/51303

Judgment

MACFARLAN JA: By order made on 16 February 2012 this Court quashed the appellant's conviction for the manslaughter of Mr Jamie Purdon on 20 February 2009. By judgment of 5 April 2012, the Court gave its reasons for making that order and, for reasons that it stated, made an order that the appellant be retried.

Within 14 days of that judgment, the appellant applied pursuant to r 50C of the Criminal Appeal Rules for the setting aside of the order for his retrial. He submitted, first, the Court had not dealt fully with his ground of appeal that the verdict of the jury was unreasonable and could not be supported having regard to the evidence and, secondly, that if the Court completed its consideration of that ground of appeal it should, and would, conclude that the order for retrial should be set aside and a verdict of acquittal of the appellant entered.

The application appears to proceed upon the assumption that when I dealt with this ground of appeal in my judgment of 5 April 2012 I did no more than conclude that as a matter of law there was evidence capable of sustaining the jury's verdict of guilty (see SKA v The Queen [2011] HCA 13; 243 CLR 400 at [20], second sentence). This assumption is erroneous. As is apparent from my discussion in the judgment of the evidence that was given at the trial, I made a full and independent assessment of it. This led me to conclude that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged ([66]). This conclusion was to the same effect as that reached by Grove AJ (with the concurrence of McClellan CJ at CL and Johnson J) in Almeddine v R [2012] NSWCCA 63 where his Honour stated, after receiving the evidence, that "I do not conclude that it would be dangerous in all the circumstances to allow the verdict of guilty to…

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 TWL v The Queen (No 2)

Details

AGLC: TWL v The Queen (No 2) [2012] NSWCCA 93
Case: [2012] NSWCCA 93
Decision Date: 15 May 2012

CaseChat Overview and Summary

In the case of TWL v The Queen (No 2), the appellant sought to appeal against his conviction for criminal charges on the ground that the verdict was unreasonable. The appeal was heard in the High Court of Australia. The respondent, The Queen, sought to uphold the conviction. The central legal issue before the court was whether it was necessary or appropriate for the Court to express a view on the issue of the appellant's guilt when ordering a retrial, in light of the principles established in the case of SKA v The Queen. The court needed to consider the appropriate circumstances in which such an expression of view would be appropriate.

The High Court held that it was not necessary or appropriate for the Court to express a view on the issue of the appellant's guilt when ordering a retrial. The court emphasised that the function of an appellate court is to review the correctness of the trial process, not to substitute its view of the facts for that of the jury. The court observed that the principles established in SKA v The Queen provide a framework for determining when a retrial may be ordered, but do not require the Court to express a view on the issue of guilt. The court concluded that the trial judge did not err in failing to express a view on the issue of guilt when ordering a retrial.

The High Court dismissed the appeal and affirmed the conviction. The court held that the trial judge's decision to order a retrial was based on a finding that there had been a significant miscarriage of justice, and that it was necessary to ensure the integrity of the criminal justice system. The court noted that the trial judge had carefully considered the evidence and the arguments presented by both parties, and had concluded that a retrial was necessary to rectify the error that had occurred. The court held that the trial judge's decision was not affected by any failure to express a view on the issue of guilt.

Orders