NSW Caselaw
Reported Decision: 192 A Crim R 8774 NSWLR 645
New South Wales Court of Criminal Appeal
CITATION: FDP v R [2008] NSWCCA 317
HEARING DATE(S): 05/12/2008
JUDGMENT DATE: 18 December 2008
JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 1; Howie J at 1
DECISION: 1. The appeal against conviction is dismissed. 2. Application for leave to appeal is granted and the appeal allowed. 3. The sentences imposed in the District Court are quashed. 4. In lieu the appellant is sentenced as follows: On each of counts 2-4 - a fixed term of 15 months to date from 1 March 2007 and which expired on 31 May 2008. On count 1 - a non-parole period of 2 years 3 months to date from 1 December 2007 with a balance of term of 18 months. The appellant is eligible to be released to parole on 1 March 2010. On the s 166 matter - a fixed term of 6 months to date from 1 March 2007 and which expired on 30 September 2007.
CATCHWORDS: Criminal Law - Appeal and New Trial - rule 4 - objection not taken to evidence - whether judge should have rejected evidence relying upon s 137 of Evidence Act - whether evidence prejudicial - Summing Up - whether judge failed to warn jury against tendency reasoning - Evidence - scope of s 137, whether requires judge to reject evidence where objection not taken - Sentencing - Malicious wounding and child abduction - whether sentences manifestly excessive.
Crimes Act 1900 - ss 33, 35, 87(1) LEGISLATION CITED: Criminal Appeal Rules - r 4 Evidence Act 1995 - ss 41, 66, 116, 130, 137 Criminal Procedure Act 1986 - ss 108, 166, 275A, 281
CATEGORY: Principal judgment
R v Moussa [2001] NSWCCA 427 Steve v R [2008] NSWCCA 231 R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 Papakosmas v The Queen (1999) 196 CLR 297 R v Villa [2005] NSWCCA 4 R v Reid [1990] NSWCCA 258 Dhanhoa v The Queen [2003] HCA 40 Gonzales v R [2007] NSWCCA; 178 A Crim R 232 R v Lyberopoulos [2002] NSWCCA 280 CASES CITED : HML v The Queen [2008] HCA 16; 82 ALJR 723 O'Leary v The King (1946) 73 CLR 566 Wilson v The Queen (1970) 123 CLR 334 Harriman v The Queen (1989) 167 CLR 590 R v Quach [2002] NSWCCA 519 DJV v R [2008] NSWCCA 272 R v GK [2001] NSWCCA 413; 53 NSWLR 317 Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 Hamid v R [2006] NSWCCA 302; 164 A Crim R 179 WNB v R [2006]NSWCCA 269
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