TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 11 of 2022 (22106045)
DELIVERED: 10 October 2023
HEARING DATE: 22 May 2023
JUDGMENT OF: Grant CJ, Brownhill & Burns JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction
Admissibility of evidence – Operation of s 411 of the Criminal Code 1983 (NT) – Whether error of law in determining that evidence was admissible – Admission of the evidence constituted a wrong decision on a question of law but not sufficient of itself to constitute substantial miscarriage of justice.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether trial Judge erred in not giving Zoneff direction – Failure of the trial Judge to give the jury a necessary direction regarding consciousness of guilt reasoning – Failure resulted in substantial miscarriage of justice – Appeal allowed.
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 42
IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
Adams v The King [2023] NTCCA 7
CA 11 of 2022 (22106045)
BETWEEN:
CLIVE ADAMS
Appellant
AND:
THE KING
Respondent
CORAM: GRANT CJ, BROWNHILL & BURNS JJ
REASONS FOR JUDGMENT
(Delivered 10 October 2023)
THE COURT:
On 21 February 2022, the appellant was arraigned on an indictment containing four counts. Count 1 alleged that on 5 September 2010 the appellant committed an act of gross indecency…
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.
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AGLC
Adams v The King [2023] NTCCA 7
Case
[2023] NTCCA 7
Decision Date
CaseChat Overview and Summary
The appellant, Adams, appealed to the Supreme Court of the Northern Territory against his conviction for offences alleged to have occurred on 5 September 2010 near Yulara. The complainant was TM, the then nine-year-old daughter of the appellant's partner. The appeal was brought pursuant to s 410 of the Criminal Code 1983 (NT), with the determination governed by s 411 of the Code.
The Court was required to determine whether the jury's verdict was unreasonable or unsupported by the evidence, or if there was a wrong decision on a question of law, or if a miscarriage of justice had occurred. Specifically, the Court considered whether to allow the appeal if it found that the verdict should be set aside on these grounds, or dismiss the appeal if no substantial miscarriage of justice had actually occurred, even if points raised by the appeal might be decided in favour of the appellant.
The Crown led evidence of events occurring in Western Australia prior to the alleged offences in the Northern Territory, intended to demonstrate the appellant's tendency to be sexually interested in TM and his preparedness to act on that interest. One such event described by TM involved the appellant, who was naked in bed, kissing TM on the mouth after she joined him for a cuddle in the campervan. TM testified that she did not perceive this kiss as inappropriate at the time, as she had observed similar behaviour within her family.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The appellant seeks orders that the appeal be allowed, the verdicts of the jury be set aside and a new trial ordered. The appellant’s right of appeal is granted by s 410 of the Criminal Code 1983 (NT) (‘the Code’). The determination of the appeal is governed by the provisions of s 411 of the Code, which relevantly provide:(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.The evidence The following is taken from the summaries of the evidence in the written submissions provided by the parties and by reference to the trial transcript. All of the offences with which the appellant was charged are alleged to have occurred on 5 September 2010 near Yulara in the Northern Territory. The complainant was TM, the then nine-year-old daughter of the appellant’s partner, SM. At the time of trial, TM was 20 years old. TM’s father passed away in January 2008. SM entered into a new relationship with the appellant in 2009 and they moved into a shared home in Western Australia some time before 2010. TM gave evidence that she initially had a good relationship with the appellant. In June 2010, the appellant, SM and TM commenced a camping trip around Australia in a campervan. TM was in year 3 of her primary schooling at that time, and she continued her schooling during the trip through distance education. The appellant, SM and TM all slept in the campervan, with the appellant and SM sharing one bed and TM sleeping in another. The Crown led evidence of events involving the appellant and TM said to have occurred in Western Australia as evidence that the appellant had a tendency to be sexually interested in TM upon which he was prepared to act. The first such event described by TM occurred in Dampier in Western Australia. The appellant, SM and TM were staying in the campervan which was parked outside the house of TM’s aunt. On the morning in question, SM had gone inside the aunt’s house, leaving the appellant and TM in the campervan. TM was still asleep and the appellant, who usually slept naked, was still in his bed. TM gave evidence that her mother disapproved of the appellant sleeping naked and usually made the appellant put on clothes beneath the bedcovers before he got up. On this particular morning, TM asked the appellant if she could hop into the bed for a cuddle. When she did, the appellant was still naked. Whilst they were cuddling, the appellant told TM to tell him if she ever felt uncomfortable, and that she could just say no, before he kissed her on the mouth. The curtains on the bed were drawn closed. TM did not register this kiss as inappropriate at the time, as she had seen a lot of her family kiss each other on the mouth. TM got out of bed and carried on with her day. She did not tell anyone about the incident.