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Court of Criminal Appeal 10 September 2012

Tiwary v R

[2012] NSWCCA 193

Homicide
CRIMINAL LAW MURDER CONVICTIONS QUASHED NO RETRIAL ORDERED

Citation: Tiwary v R [2012] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 10 September 2012
Judge(s): Bathurst CJ, Allsop P, Fullerton J

Background

The appellant was convicted by majority jury verdict of the murders of two university students, his flatmates, who were found dead at their shared Kensington premises in September 2003. Both victims had suffered severe blunt force head injuries consistent with a baseball bat, and both had been stabbed in the neck. The appellant placed the 000 call that brought police to the scene.

The Crown case was circumstantial. It alleged the appellant attacked the first victim with a baseball bat while the second was away from the unit, then attacked the second victim when he returned approximately two hours later, before stabbing both and calling police. The appellant's account was that he was asleep during the killings and did not emerge from his bedroom out of fear.

This was the appellant's second conviction for the murders. His first conviction, entered in 2006, had been quashed on appeal in 2008 on grounds unrelated to those raised in the present proceedings.

  • Whether the jury verdicts were unreasonable or insupportable having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW), such that a court of criminal appeal ought to have experienced a reasonable doubt as to guilt
  • Whether the trial judge erred in admitting expert forensic transfer evidence over an objection under s 137 of the Evidence Act 1995 (NSW), which requires exclusion where unfair prejudice substantially outweighs probative value

Decision

Unreasonable verdict ground (allowed)

The Court applied the principles from SKA v R and M v R, which require an appellate court to ask, as a question of fact on the whole of the evidence, whether there is a reasonable doubt that the jury ought also to have experienced. The inquiry is not merely whether there was some evidence capable of sustaining a guilty verdict as a matter of law; the appellate court must be satisfied the verdict was reasonably open on the evidence as a whole.

The forensic evidence was described as leaving a number of issues that could not be demonstrated to scientific certainty. While the appellant's account contained inconsistencies and implausibilities, the Court found that the available forensic and other evidence was sufficient to support rational hypotheses consistent with innocence. The majority jury verdicts did not survive scrutiny on this basis, and the Court concluded a reasonable doubt ought to have been experienced.

Expert evidence ground (rejected)

The defence challenged the admission of expert fibre and transfer evidence given by a forensic scientist, arguing it was unfairly prejudicial within the meaning of s 137. The trial judge had found the evidence was probative, that its limitations could be properly explored before the jury, and that no unfair prejudice arose. The Court of Criminal Appeal agreed with the trial judge's evaluation and found no error in the ruling. The Court noted that any risk of misuse of the evidence was addressed through directions given to the jury, about which no separate complaint was made.

Orders Made

  • Time for filing the notice of appeal extended
  • Appeal allowed
  • Convictions for the murders of both victims quashed
  • Verdicts of acquittal entered on both counts of murder
  • No retrial ordered

Key Takeaways

  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), a court of criminal appeal must determine as a question of fact whether the evidence as a whole gives rise to a reasonable doubt, not merely whether the evidence was legally sufficient to support a conviction.
  • Inconsistencies and implausibilities in an appellant's account do not automatically foreclose a reasonable doubt where forensic evidence leaves open rational hypotheses consistent with innocence.
  • The Court of Criminal Appeal confirmed that majority jury verdicts are subject to the same standard of appellate scrutiny as unanimous verdicts when unreasonableness is alleged.
  • In dismissing the s 137 ground, the Court held that expert evidence of limited but genuine probative value is not rendered inadmissible by uncertainty in its conclusions, provided those limitations can be properly explored before the jury and appropriate directions are given.
  • Where convictions are quashed as unreasonable and insupportable having regard to the evidence, the appropriate order is the entry of verdicts of acquittal rather than the ordering of a retrial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 137

Cases
- SKA v R [2011] HCA 13; 243 CLR 400
- M v R [1994] HCA 63; 181 CLR 487
- Kurdi v R [2011] NSWCCA 179
- Tiwary v R [2008] NSWCCA 319