AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
16
Court of Criminal Appeal 18 December 2008

FDP v R

[2008] NSWCCA 317

Also reported as (2008) 74 NSWLR 645 192 A Crim R 87
Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AND NEW TRIAL RULE 4 OBJECTION NOT TAKEN TO EVIDENCE WHETHER EVIDENCE PREJUDICIAL SUMMING UP

Citation: FDP v R [2008] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 18 December 2008
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The appellant was charged with four offences arising from two separate incidents. Three counts related to child abduction: on 2 April 2006, the appellant took each of his three children without the consent of his wife (the complainant), who held parental responsibility for them, contrary to s 87(1) of the Crimes Act 1900. The appellant pleaded guilty to all three of those counts.

The fourth count alleged that on 2 August 2006 the appellant maliciously wounded the complainant with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act. The complainant was the appellant's estranged wife. The trial proceeded on that count alone, and the jury acquitted the appellant of the s 33 offence but convicted him of the lesser alternative of malicious wounding under s 35.

The circumstances of the wounding arose from a meeting at a park. The complainant alleged the appellant struck her with her own mobile phone and then stabbed her with a knife before driving away with the children. The appellant gave a different account, claiming the complainant had produced the knife herself. The trial also involved evidence of an earlier incident on 16 July 2006 and the making of an Apprehended Domestic Violence Order (ADVO) on 20 July 2006.

  • Whether the trial miscarried because evidence of the appellant's conduct on 16 July 2006, and of the ADVO made on 20 July 2006, was admitted without objection and without the trial judge exercising the exclusionary discretion under s 137 of the Evidence Act 1995
  • Whether s 137 of the Evidence Act requires a judge to exclude evidence where its probative value is outweighed by the danger of unfair prejudice, even when no objection to that evidence has been taken at trial
  • Whether the trial judge failed to adequately direct the jury against using the prior incidents as tendency reasoning
  • Whether the sentences imposed in the District Court were manifestly excessive

Decision

Conviction appeal: admissibility and s 137

The Court dismissed the conviction appeal. On the question of whether the trial judge was obliged to exclude the evidence of the 16 July 2006 incident and the ADVO under s 137 of the Evidence Act, even absent any objection, the Court found no error warranting a new trial. The evidence of those prior events was relevant and admissible. The Court noted that while s 137 imposes an obligation on a judge, the failure to raise an objection is a significant consideration when assessing whether any miscarriage of justice occurred under Criminal Appeal Rule 4.

Conviction appeal: directions on tendency reasoning

The Court also rejected the ground that the trial judge failed to adequately warn the jury against tendency reasoning arising from the prior incidents. The summing up was assessed in its entirety, and the Court was not satisfied that any inadequacy in the directions caused a miscarriage of justice in the circumstances of this trial.

Sentence appeal: manifestly excessive

The Court granted leave to appeal against sentence and allowed the appeal, finding the original sentences imposed by Goldring DCJ were manifestly excessive. The overall sentence of 6 years 6 months with a non-parole period of 4 years 6 months was set aside. The Court noted that while the offending was serious given its domestic violence context, the breach of an ADVO, and the use of a knife, the physical injury actually inflicted was relatively minor: a two and a half centimetre laceration to the upper arm that was stitched, with no permanent injury or scarring. The Court found the proper sentence for the malicious wounding could not reasonably have exceeded 3 years 6 months. The Court also took into account the appellant's conduct and participation in rehabilitative courses during custody.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against sentence is granted and the appeal allowed.
  • The sentences imposed in the District Court are quashed.
  • In lieu, the following sentences were imposed:
  • Counts 2 to 4 (child abduction): fixed term of 15 months each, dating from 1 March 2007, expired 31 May 2008
  • Count 1 (malicious wounding): non-parole period of 2 years 3 months from 1 December 2007, with a balance of term of 18 months; eligible for parole release on 1 March 2010
  • Section 166 matter: fixed term of 6 months from 1 March 2007, expired 30 September 2007

Key Takeaways

  • Under s 137 of the Evidence Act 1995, a judge has a duty to exclude evidence whose probative value is outweighed by the danger of unfair prejudice; however, in a conviction appeal, the absence of any objection at trial is a material factor in assessing whether a failure to exercise that discretion resulted in a miscarriage of justice under Criminal Appeal Rule 4.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the relevant question is not merely whether the judge should have acted under s 137, but whether any error in that regard actually caused a miscarriage of justice on the facts of the case.
  • Where a jury direction on tendency reasoning is challenged, the summing up must be evaluated as a whole, and an inadequacy in directions will not automatically warrant a new trial unless it can be shown to have caused actual prejudice.
  • Sentencing for malicious wounding in a domestic violence context requires careful calibration: the Court found that aggravating features, including a breach of an ADVO and use of a weapon, must be weighed against the actual severity of physical injury, which here was relatively minor with no lasting harm.
  • Evidence of rehabilitative conduct during custody, including participation in programs, was taken into account in resentencing, consistent with principles of individualised sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 87(1)
- Evidence Act 1995 (NSW), ss 41, 66, 116, 130, 137
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 108, 166, 275A, 281

Cases
- R v Moussa [2001] NSWCCA 427
- Steve v R [2008] NSWCCA 231
- R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Villa [2005] NSWCCA 4
- R v Reid [1990] NSWCCA 258
- Dhanhoa v The Queen [2003] HCA 40
- Gonzales v R [2007] NSWCCA; 178 A Crim R 232
- R v Lyberopoulos [2002] NSWCCA 280
- HML v The Queen [2008] HCA 16; 82 ALJR 723
- O'Leary v The King (1946) 73 CLR 566
- Wilson v The Queen (1970) 123 CLR 334
- Harriman v The Queen (1989) 167 CLR 590
- R v Quach [2002] NSWCCA 519
- DJV v R [2008] NSWCCA 272
- R v GK [2001] NSWCCA 413; 53 NSWLR 317
- Seymour v R [2006] NSWCCA 206; 162 A Crim R 576
- Hamid v R [2006] NSWCCA 302; 164 A Crim R 179
- WNB v R [2006] NSWCCA 269