R v Taupau [2002] NSWCCA 473

New South Wales Court of Criminal Appeal

CITATION : R v Taupau [2002] NSWCCA 473 revised - 3/12/2002 FILE NUMBER(S) : CCA 60123 of 2002 HEARING DATE(S) : 21/11/02 JUDGMENT DATE : 21 November 2002

Regina PARTIES : v Filivae Taupau JUDGMENT OF : Meagher JA at 1, 16; Hidden J at 11; Greg James J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/21/1011 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : Appellant: In Person Respondent: D Frearson SOLICITORS : Appellant: In Person Respondent: S E O'Connor CATCHWORDS : Appeal against conviction and severity of sentence - grievous bodily harm - appeal against conviction dismissed - application for appeal against severity of sentence allowed but appeal dismissed. LEGISLATION CITED : s6(1) Criminal Appeal Act 1912 DECISION : Application allowed, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60123 of 2002

MEAGHER JA HIDDEN J GREG JAMES J

Thursday, 21 November 2002 REGINA v FILIVAE TAUPAU Judgment 1 MEAGHER JA: Mr Filivae Taupau is seeking leave to appeal and appealing, from a sentence which was pronounced by Judge O'Reilly at Penrith District Court on the charge that he did maliciously wound Mr David O'Toole with the intention of doing him grievous bodily harm. He was tried before his Honour and a jury of twelve and he was found to be guilty. He was sentenced, on 1 March 2002, to a sentence of imprisonment for four years with a non-parole period of two years and six months. He now wishes to appeal. 2 The facts of the case seem to be within a fairly short compass. A group of people attended a party on Saturday night 15 July 2000 at 1322 Popondetta Road, Bidwill in order to celebrate the birthday of David O'Toole, the gentleman who was later the victim of the assault. 3 Later in that evening, at about 10pm, there was an argument between some of the guests of the party and Mr Taupau. There is no reason to recite the cause of that argument. After a while a Miss Ferguson, who was at the party, took Mr Taupau back to his house, which is across the road from Mr O'Toole's house. She had a drink and a cigarette with him and his wife. Miss Ferguson then returned to Mr O'Toole's party. 4 Mr O'Toole told the court that Mr Taupau continued to yell out abuse from the verandah of his house directed at Mr O'Toole. Then, at approximately 1.30am, Mr Taupau and a few others came back to Mr O'Toole's house and continued the argument. The argument got heated and, at one stage, Mr Taupau lunged at Mr O'Toole with his right hand towards the stomach area. Mr O'Toole could not remember whether it connected with him, or not. Mr O'Toole then hit Mr Taupau on his nose and he fell to the ground. Other members of the party then joined in. Mr O'Toole seemed to have trouble remembering precisely what happened as he kept going in and out of consciousness. He looked down, saw his shirt was red with blood, yelled out for help and waited for the ambulance to arrive. 5 Mr O'Toole suffered four stab wounds to his body, three of which were superficial, and one of which was serious. The serious one resulted in his bowel being visible and required surgery. 6 Mr O'Toole's girlfriend, Kim Bennett, gave evidence that Mr Taupau had said to her that he was going to go outside to sort out their problem. She followed him about five minutes later and saw Mr Taupau punching into the victim, punching into Mr O'Toole from the front, and others attacking Mr O'Toole from other aspects. She then saw Mr Taupau lying on the ground. They then noticed Mr O'Toole was bleeding, so they sat him on a chair and got a towel to hold next to the wound. 7 One thing which is quite certain, and does not seriously seem to have been contested, was that Mr O'Toole's wounds were inflicted by a knife. They were not the result of mere punching. 8 The evidence connecting Mr Taupau with the knife really depends on two factors. The first is the evidence of Miss Bennett's eleven year old son, Mr Trent Parker, who also attended the party. When the fighting commenced in front of the property he went outside the house to see what was happening. He saw Mr Taupau attacking Mr O'Toole with a knife. He saw Mr Taupau stabbing the victim in the central chest area and his belly. He said the knife Mr Taupau used had a blade which was about fifteen to twenty centimetres long. It is true that Mr Parker was only eleven years old. It is also true that he had had at least one drink. However, he did give evidence which I recited and the jury obviously believed him. That was one of the two principal pieces of evidence which connected the applicant, Mr Taupau, with the use of the knife. 9 The other piece of evidence was the evidence of Ms Kim Ferguson who said that, when she took the present appellant, Mr Taupau back across the road to his own house, she asked him why he had stabbed Mr O'Toole, to which question the appellant merely laughed and said "I did." 10 I might add that Mr Taupau himself did not give evidence, nor did he call any witnesses. In those circumstances it is no wonder, it seems to me, that the jury came in with the verdict of guilty which they did. Nor can I see that the commission of a crime of that nature deserved any sentence more lenient that the sentence which the judge imposed. In those circumstances, in my view, the appeal against conviction should be dismissed and, so far as there is an application for appeal against severity of sentence, the application should be allowed, but the appeal dismissed. 11 HIDDEN J: I agree. The appellant furnished us with some written material. Some of it consists of criticisms of the evidence which was given but, for the reasons expressed by Justice Meagher, it was clearly open to the jury to arrive at the verdict that they did. Other parts of the written material amount to assertions which were not in evidence. They are clearly matters as to which evidence could have been given at the trial, and in no sense could they amount to fresh evidence such as might lead this court to intervene on appeal. 12 I agree with the orders proposed. 13 GREG JAMES J: Section 6(1) of the Criminal Appeal Act allows this court to intervene in respect of an appeal only where absent any other error the conviction cannot be supported having regard to the evidence, or is unreasonable. 14 Various matters that have been referred to by the appellant in his written documents do not raise, for the reasons given by the presiding judge, any such matter as to cast into doubt the applicant's conviction, having regard to the provisions of the section. 15 Nor has any matter been advanced such as might show that the sentence was other than within the lawful range. For the reasons given by the presiding judge, with which I agree, for these reasons, and having regard to the comments made by Justice Hidden, with which I also agree, I share the view that the appeal and the application should be dismissed. 16 MEAGHER JA: Those, then, are the orders of the court.