Tiwary v R [2008] NSWCCA 319

Tiwary v R [2008] NSWCCA 319

The conviction appeal was upheld because the trial miscarried. The alleged inconsistency in the appellant's accounts, including the so-called big lie about the sequence of seeing the bodies and making the OOO call, could affect reliability or credibility but was not available as consciousness of guilt, and the directions did not adequately comply with Edwards. The summing up also wrongly left open the possibility that the jury could use the blood on the appellant's feet as a decisive or clinching fact, although the unchallenged medical evidence and other evidence meant the jury could not be satisfied that there was only one rational explanation for that blood. The verdict was not set...

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal After Conviction for Two Counts of Murder in the Supreme Court
Outcome
Appeal upheld; conviction quashed; new trial ordered.
Legal Topics
['appeal Against Conviction' 'misdirection and Non Direction' 'lies as Consciousness of Guilt' 'circumstantial Evidence' 'blood Stain Evidence' 'unreasonable or Insupportable Verdict' 'new Trial' 'appeal Against Sentence']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['appeal Against Conviction' 'misdirection and Non Direction' 'lies as Consciousness of Guilt' 'circumstantial Evidence' 'blood Stain Evidence' 'unreasonable or Insupportable Verdict' 'new Trial' 'appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal After Conviction for Two Counts of Murder in the Supreme Court

Legal Issues

  1. 1 ["Whether the Crown Prosecutor's address on lies as consciousness of guilt, together with the trial judge's directions on lies, caused the trial to miscarry." "Whether the trial miscarried by reason of the way evidence about blood on the appellant's feet was dealt with in evidence, Crown submissions and the summing up." 'Whether the verdict was unreasonable or could not be supported having regard to the evidence.' 'Whether sentencing issues should be considered where a new trial was ordered.']

Ratio Decidendi

The conviction appeal was upheld because the trial miscarried. The alleged inconsistency in the appellant's accounts, including the so-called big lie about the sequence of seeing the bodies and making the OOO call, could affect reliability or credibility but was not available as consciousness of guilt, and the directions did not adequately comply with Edwards. The summing up also wrongly left open the possibility that the jury could use the blood on the appellant's feet as a decisive or clinching fact, although the unchallenged medical evidence and other evidence meant the jury could not be satisfied that there was only one rational explanation for that blood. The verdict was not set...

Court Disposition

Appeal upheld; conviction quashed; new trial ordered.

Orders

  • ['Appeal upheld' 'Conviction quashed' 'New trial ordered']