Citation: R v Toma [1999] NSWCCA 350 revised - 29/11/99
Court: NSW Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Grove J, James J, Dowd J
Background
The appellant was convicted of murder following a trial before Hulme J and a jury in the Supreme Court. The killing arose from a violent dispute between the appellant and his wife's extended family in Fairfield in September 1996. After a week of family conflict, the victim confronted the appellant outside his home, armed with a steering wheel lock and using insulting and challenging language.
The appellant responded by arming himself with multiple knives, a rock, and a table leg before jumping a fence to engage the victim. In the ensuing fight, the appellant stabbed the victim twice, including a wound that penetrated the heart and caused death several days later. Hulme J found that both men were aggressors, and that the jury must have been satisfied the appellant at least intended to inflict grievous bodily harm.
The appellant was sentenced to eighteen years penal servitude, with a minimum term of thirteen and a half years and an additional term of four and a half years. He appealed both conviction and sentence.
Legal Issues
- Whether the trial judge erred in directing the jury that death could have occurred as the result of an accident, and in effectively removing accident from the jury's consideration
- Whether the trial judge's direction on provocation was deficient, in that it substantially removed that issue from the jury
- Whether a psychologist's statement that the appellant was "full of remorse" was admissible at the sentencing hearing, and whether the trial judge erred in excluding it
Decision
Grounds 1 and 2 (accident and causation directions): The Court found no error in the trial judge's approach. The Crown had identified the relevant act as the thrusting of a knife into the victim, and there was no real issue at trial as to whether that act caused the death. In those circumstances, no special direction on causation was required, and the directions given were adequate.
Ground 5 (provocation direction): The Court rejected the submission that the trial judge had substantially removed provocation from the jury. The jury had the issue properly put to it and resolved it adversely to the appellant. No misdirection was established.
Sentence appeal (remorse evidence): The appellant tendered a psychologist's report at the sentencing hearing which included a statement that the appellant was "full of remorse for his actions." The Crown objected, and Hulme J excluded the statement. The Court of Criminal Appeal upheld that ruling. The statement was an expression of opinion, and its basis was not disclosed in the report or elsewhere. The appellant did not give evidence at the trial or at sentence, and Hulme J concluded there was nothing to indicate genuine remorse. The Court also held the statement was not admissible under s 65(8) of the Evidence Act, because there was no evidence that the psychologist was unavailable to give evidence, a precondition to that provision applying. Even if it had been admissible, Hulme J's discretion to exclude it under s 135 of the Evidence Act was properly exercised given its lack of probative value.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but appeal against sentence dismissed
Key Takeaways
- Where the Crown identifies a specific act as the basis for a murder charge and causation is not genuinely in dispute at trial, no special direction on causation is required.
- A psychologist's bare assertion that a defendant is "full of remorse" constitutes an opinion, and without any disclosed reasoning or basis, it carries no probative value and may properly be excluded at sentencing.
- Under s 65 of the Evidence Act, an out-of-court representation is only admissible through that provision if the maker of the representation was unavailable to give evidence. Absence of proof of unavailability will defeat reliance on s 65(8).
- In dismissing the sentence appeal, the Court confirmed that a sentencing judge may reject a claim of remorse where the defendant has not given evidence and the tendered material does not disclose how any conclusion about remorse was reached.
- No error was established in the trial judge's provocation direction merely because the jury resolved the issue against the appellant.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 65(8), s 135
Cases:
No specific cases were cited in the portions of the judgment provided.