Tabalbag v R [2016] NSWCCA 48

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tabalbag v R [2016] NSWCCA 48 Hearing dates: 22 March 2016 Date of orders: 06 April 2016 Decision date: 06 April 2016 Before: Hoeben CJ at CL at [1] Harrison J at [1] Davies J at [1] Decision: (1) In the conviction appeal, grounds 1 and 2 are upheld and the appeal is allowed. (2) Leave to rely upon ground 3 in the conviction appeal is refused. (3) Ground 4 in the conviction appeal is not considered. (4) The Crown appeal against sentence is not considered. (5) The appellant's conviction for the murder of Amin Sthapit is quashed. (6) A new trial is to be ordered. Catchwords: CRIMINAL LAW – conviction appeal – appellant's guilt determined by majority verdict of jury – whether terms of s 55F(2)(b) of Jury Act 1977 (NSW) complied with – whether point reached in trial whereby majority verdict could be taken – whether court could have been satisfied after examination on oath of a juror that it was unlikely that the jurors would reach a unanimous verdict after further deliberation – s 55F(2)(b) not complied with – new trial ordered. Legislation Cited: Crimes Act 1900 (NSW) – s 23 Jury Act 1977 (NSW) – s 55F(2)(b) Criminal Appeal Rules (NSW) Cases Cited: AGW v Regina [2008] NSWCCA 81 BG v R [2012] NSWCCA 139 Black v The Queen [1993] HCA 71; 179 CLR 44 BR v R [2014] NSWCCA 46; 86 NSWLR 456 Cheatle v The Queen [1993] HCA 44; 177 CLR 541 Green v The Queen [1997] HCA 50; 191 CLR 334 Hunt v Regina [2011] NSWCCA 152; 81 NSWLR 181 Le v R [2012] NSWCCA 202 Masciatonio v The Queen [1995] HCA 67; 183 CLR 58 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Pasoski v R [2014] NSWCCA 309 RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100 Wu v The Queen [1999] HCA 52; 199 CLR 99 Category: Principal judgment Parties: Roy Tabalbag – Appellant Regina – Respondent Crown Representation: Counsel: Ms B Rigg SC – Appellant P Ingram SC – Respondent Crown Solicitors: Legal Aid NSW - Appellant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/340538 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Tabalbag [2015] NSWSC 1354 Date of Decision: 14 September 2015 Before: Adams J File Number(s): 2013/340538