Tongahai v R [2014] NSWCCA 81

Tongahai v R [2014] NSWCCA 81

No miscarriage of justice occurred as the applicant was represented by experienced counsel, made an informed decision not to attend the view for practical reasons, and there was no evidence of incompetence or misleading conduct by counsel or the judge; the evidence of subjective belief was irrelevant and inadmissible.

Parties
Applicant: Moroni Tongahai; Respondent: Regina
Jurisdiction
Australia
Judgment Date
15 May 2014
Procedural Posture
Criminal Appeal / Application for Extension of Time and Leave to Appeal Conviction
Outcome
Extension of time granted; leave to appeal refused.
Legal Topics
Miscarriage of Justice, Presence of Accused at View, Appeal Against Conviction, Trial Procedure, Admissibility of Evidence
Criminal Law Evidence Miscarriage of Justice Presence of Accused at View Appeal Against Conviction Trial Procedure Admissibility of Evidence

Case Brief

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Parties

Moroni Tongahai

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application for Extension of Time and Leave to Appeal Conviction

Legal Issues

  1. 1 Whether a miscarriage of justice occurred due to the applicant's absence from the view during trial
  2. 2 Whether the applicant was misled regarding his right to attend the view
  3. 3 Whether counsel or the trial judge misinformed the accused about his entitlement to be present at the view

Ratio Decidendi

No miscarriage of justice occurred as the applicant was represented by experienced counsel, made an informed decision not to attend the view for practical reasons, and there was no evidence of incompetence or misleading conduct by counsel or the judge; the evidence of subjective belief was irrelevant and inadmissible.

Court Disposition

Extension of time granted; leave to appeal refused.

Orders

  • Grant the applicant an extension of time up to and including 18 October 2013 for filing the notice of appeal.
  • Reject as inadmissible the evidence of the applicant and Mr Sutherland with respect to the circumstances in which the trial judge directed that there be a view to be undertaken in the absence of the accused.