CATCHWORDS:
CRIMINAL LAW
Appeal - evidence - admissibility - evidence of prior insurance claim - whether schedule to insurance policy admissible - whether record of interview admissible - whether opinion evidence admissible - duty of counsel for the Crown and accused - duty of trial Judge to give proper directions and warnings to jury - burden and standard of proof - reasonable doubt - whether trial Judge misdirected jury - appeal allowed.

Criminal Code Act (NT), s 227(1).

The Queen v Ireland (1970) 126 CLR 321, at 331, applied.
Woon v The Queen (1964) 109 CLR 529, at 535 and 541, applied.
R v Wilson, Tchorz and Young (1986) 42 SASR 203, at 206 and 207, applied.
Smith v The Queen (2001) 206 CLR 650, at 653, considered.
R v Plevac (1995) 84 A Crim R 570, considered.
Green v The Queen (1971) 126 CLR 28, considered.

REPRESENTATION:

Counsel:
Appellant: S Cox
Respondent: M Carey & N Rogers

Solicitors:
Appellant: NTLAC
Respondent: DPP

Judgment category classification: A
Judgment ID Number: Mar0406
Number of pages: 31

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Barr v The Queen [2004] NTCCA 1
No. CA 1 of 2003 (20008991)

BETWEEN:

STEPHEN MICHAEL BARR
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, ANGEL & MILDREN JJ

REASONS FOR JUDGMENT

(Delivered 16 April 2004)

Martin (BR) CJ:
[1] The appellant was convicted by a jury of obtaining property by deception contrary to s 227(1) of the Criminal Code. In substance, it was the Crown case that the accused fraudulently pretended that his BMW motor vehicle had been stolen and damaged and fraudulently made a claim under his insurance policy. As a consequence of the claim, the Territory Insurance Office paid $16,545.10 to the appellant.
[2] The critical issue in dispute was whether the Crown had proved that the appellant damaged his own car and made a false claim. The Crown relied upon circumstantial evidence together with the evidence of Mr Norman Whitfield of an admission made to him by the appellant.
[3] Ground 1 of the appeal as originally presented was abandoned. The remaining two grounds complained that the trial Judge erred in admitting evidence that the appellant had previously claimed an insurance payment in respect of a car which had been stolen and that his Honour erred in failing to direct the jury that the jury could not draw any inference adverse to the appellant by reason of that previous claim. Additional grounds added during the hearing of the appeal are discussed later in these reasons.
[4] Evidence…

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 Barr v The Queen

Details

AGLC: Barr v The Queen [2004] NTCCA 1
Case: [2004] NTCCA 1
Decision Date: 16 April 2004

CaseChat Overview and Summary

The appellant, Stephen Michael Barr, was convicted by a jury in the Supreme Court of the Northern Territory of obtaining property by deception, contrary to s 227(1) of the Criminal Code. The Crown alleged that the appellant fraudulently claimed his BMW motor vehicle had been stolen and damaged, leading the Territory Insurance Office to pay him $16,545.10. The central dispute was whether the Crown had proven the appellant’s involvement in damaging his own car and making a false insurance claim, relying on circumstantial evidence and an alleged admission.

The appeal raised several legal issues, including the admissibility of evidence concerning a prior insurance claim made by the appellant for a stolen and burnt-out vehicle, and whether a record of interview containing this information was properly admitted. Further grounds of appeal concerned the trial judge's duty to provide proper directions and warnings to the jury regarding the burden and standard of proof, and specifically, whether the judge misdirected the jury on the inferences that could be drawn from the appellant's silence during the police interview.

The Court of Criminal Appeal found that the evidence of the prior insurance claim, both from the schedule to the appellant's insurance policy and from the record of interview, was irrelevant and inadmissible. The court reasoned that this evidence had no probative value on the issues before the jury and should have been excluded, or at least edited from the documents presented. Furthermore, the court held that the trial judge erred in allowing the jury to be invited to draw an adverse inference from the appellant's thirteen-second silence when asked if he had damaged his vehicle, particularly given he had been cautioned about his right to remain silent. The court also noted concerns about a hearsay assertion put to the appellant during the interview that was not supported by evidence.

Allowing the appeal, the Court of Criminal Appeal concluded that the cumulative effect of these errors, including the admission of inadmissible evidence and the impermissible invitation to the jury to draw adverse inferences from the appellant's silence, constituted a miscarriage of justice. The court therefore quashed the conviction and ordered a new trial.

Orders