A v The Queen - [2012] NTCCA 9

A v The Queen [2012] NTCCA 09
PARTIES: A
v

The Queen

TITLE OF COURT:   COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:   CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:   CA 16 of 2011 (20818980)
DELIVERED:   17 APRIL 2012
HEARING DATES:   2 APRIL 2012
JUDGMENT OF:   RILEY CJ, KELLY & BARR JJ
APPEAL FROM:   SOUTHWOOD J

Criminal Code Act s 410, 411(1)
Sexual Offences (Evidence and Procedure) Act (NT)
Carr v The Queen 24 [1988] HCA 47; (1988) 165 CLR 314; Gipp v R [1998] HCA 21; 194 CLR 106; House v The King (1936) 55 CLR 499; Jones v The Queen[1997] HCA 12; (1997) 72 ALJR 78; 149 ALR 598; Knight v The Queen 26 [1992] HCA 56; (1992) 175 CLR 495; M v R [1994] HCA 63; (1994) 181 CLR 487; R v Varley [1976-1977] 12 ALR 347, followed.
R v Zorad (1990) 19 NSWLR 91, applied.
REPRESENTATION:
Counsel:
Appellant:   Self represented
Respondent:   M Thomas
Solicitors:
Appellant:   Self represented
Respondent:   Office of the Director of Public Prosecutions

Judgment category classification:    C
Judgment ID Number:   KEL12011
Number of pages:   21

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
A v The Queen [2012] NTCCA 09

No. CA 16 of 2011 (20818980)
BETWEEN:

A

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, KELLY & BARR JJ
REASONS FOR JUDGMENT
(Delivered 17 April 2012)
RILEY CJ:

I agree with the orders proposed by Kelly J for the reasons expressed by her Honour.
KELLY J:
This matter has a long and involved history. A was charged with committing offences of a sexual nature against the daughter of his de facto partner from about 2002 to about 2007.
His first trial was before Martin CJ in August 2009. He was represented by counsel and was found guilty of a number of charges.
A appealed and was self represented. Counsel appeared as amicus curiae in the Court of Criminal Appeal. The appeal was heard in October 2010 and was successful. A retrial was ordered.
In July 2011 the evidence of the complainant was pre-recorded at a special hearing at which A was again self represented.
In September 2011 there was a retrial before Southwood J. The complainant was called to give further evidence, and at the invitation of Southwood J, Mr Tippett QC appeared as amicus curiae to cross-examine the complainant.[1] Otherwise A was self represented.
At the conclusion of the retrial A was again convicted of all but one of the nine charges on the indictment.
In November 2011 A lodged a notice of appeal against conviction on the stated grounds that there had been coaching of a witness and the jury failed to take account of his Honour’s summing up of the defence case.
There followed numerous case management conferences at which A was self represented. It was explained to him that the provisions of s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v The Queen

Details

AGLC: A v The Queen [2012] NTCCA 09
Case: [2012] NTCCA 9
Decision Date: 17/04/2012

CaseChat Overview and Summary

In *A v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction for sexual assault. The appellant, A, had been found guilty by a jury of one count of sexual assault and sentenced to a term of imprisonment. The appeal concerned the fairness of the trial process and the admissibility of certain evidence.

The central legal issues before the Court of Appeal were whether the trial judge had erred in admitting evidence of the appellant's prior sexual history, and whether the summing up to the jury was adequate in light of this evidence. Specifically, the court had to determine if the admission of this evidence was unduly prejudicial and if the directions given to the jury sufficiently mitigated any potential prejudice.

The Court of Appeal reasoned that the admission of the prior sexual history evidence was an error. It held that the evidence was not relevant to any issue in dispute and its prejudicial effect outweighed any probative value. The court found that the summing up did not adequately address the potential prejudice arising from this evidence, thereby rendering the trial unfair. Consequently, the court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders