NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: Vaoalii TOALEPAI v R [2009] NSWCCA 270
HEARING DATE(S): 10/9/09
JUDGMENT DATE: 3 November 2009
JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hislop J at 66
DECISION: The appeal is dismissed.
CATCHWORDS: Criminal Law - Conviction appeal - child sexual assault offences - evidence of complainant that conduct occurred whenever mother went out - whether context evidence - whether Judge ought to have given a warning against tendency reasoning - no request for any such warning - whether rule 4 applies - whether verdicts unreasonable.
LEGISLATION CITED: Crimes Act 1900 - ss 66A, 61M(2), 610(2)
CATEGORY: Principal judgment
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 Fung v R [2007] NSWCCA 250; 174 A Crim R 169 CASES CITED : Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 DJV v R [2008] NSWCCA 272 Rodden v R [2008] NSWCCA 53; 182 A Crim R 227 TK v R [2009] NSWCCA 151
PARTIES: Vaoalii Toalepai v Regina
FILE NUMBER(S): CCA 2007/10550
COUNSEL: S Dowling - Crown C Davenport - Appellant
SOLICITORS: S Kavanagh - Crown S O'Connor - Appellant
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2007/21/0276
LOWER COURT JUDICIAL OFFICER: Quirk DCJ
LOWER COURT DATE OF DECISION: 10/04/2008
IN THE COURT OF CRIMINAL APPEAL 2007/10550
MACFARLAN JA HOWIE J HISLOP J
TUESDAY 3 NOVEMBER 2009 Vaoalii TOALEPAI v REGINA Judgment 1 MACFARLAN JA: I agree with Howie J. 2 HOWIE J: This is an appeal against conviction of five sexual assault offences committed against a child, TL, between August 1999 and October 2001 when the child was between the ages of 6 and 8 years. The offences comprised three counts of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act (counts 1, 3 and 5), a count of indecent assault of a child under 10 years contrary to s 61M(2) (count 2) and a count of inciting a child under 10 years to commit an indecent act contrary to s 61O(2) (count 4). The appellant was sentenced to an overall sentence of 6 years and 6 months with a non-parole period of 4 years. There is no application to appeal against sentence. 3 There are two grounds of appeal filed:
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