Taufa v R; Siola’a v R [2020] NSWCCA 264

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Taufa v R; Siola'a v R [2020] NSWCCA 264 Hearing dates: 28 August 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Before: Hoeben CJ at CL at [1] Davies J at [2] Adamson J at [76] Decision: Conviction appeal: (a) Refuse leave under Rule 4 in relation to Ground 2. (b) Appeal dismissed. Sentence appeal: (1) Grant leave to appeal. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – attempted specially aggravated break and enter with intent to commit serious indictable offence – where circumstances of special aggravation were that offenders were armed with a dangerous weapon – Crimes Act 1900 s 113(3) - whether conviction should be quashed because of defect in the indictment in that it did not refer to the offence being committed in circumstances of aggravation – where circumstances of aggravation were being armed with an offensive weapon - where alleged failure to identify an element of the offence – where element was necessarily implied in the pleading of another element – where the defect was cured by the jury's verdict – whether trial judge misdirected the jury as to the elements of the offence by reason of the form of the indictment - where no miscarriage of justice CRIME – appeals – appeal against sentence - whether sentencing judge erred by making findings contrary to jury's verdict – where jury not satisfied offenders were in possession of an imitation firearm – where sentencing judge took into account a circumstance of aggravation not mentioned in indictment - where no breach of the De Simoni principle - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 4, 59, 61, 97, 105A, 112, 113, 115A, 117, 195, 344A Criminal Appeal Act 1912 (NSW) s 7 Criminal Appeal Rules r 4 Criminal Procedure Act 1986 (NSW) ss 11, 16, 17, 166 Firearms Act 1996 (NSW) s 4D Cases Cited: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Doja v R [2009] NSWCCA 303 Firbank v R [2011] NSWCCA 171 Heymann v The Queen (1873) LR 8 QB 102 MM v R [2016] NSWCCA 235 MM v R [2018] NSWCCA 158 Marshall v R [2007] NSWCCA 24 R v De Simoni (1981) 147 CLR 383 R v Isaacs (1997) 41 NSWLR 374 R v Li (Court of Criminal Appeal (NSW), 9 July 1997, unrep) R v Morris (NSWCCA Gleeson CJ, McInerney and Ireland JJ, 25 November 1996, unreported) R v O'Donoghue [2005] NSWCCA 62; (2005) 151 A Crim R 597 Regina v Bennett [2014] NSWCCA 197 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7 TH v R [2019] NSWCCA 184 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Tonari v R [2013] NSWCCA 232 Texts Cited: Nil Category: Principal judgment Parties: Samuiela Taufa (Appellant) Misinale Siola'a (Appellant) Crown (Respondent) Representation: Counsel: M Johnston SC (Appellant Taufa) K Averre (Appellant Siola'a) B Baker (Respondent)