BI v Moss

Case [2018] ACTSC 278


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

BI v Moss

Citation:

[2018] ACTSC 278

Hearing Dates:

31 July 2018

DecisionDate:

12 October 2018

Before:

Loukas-Karlsson J

Decision:

The appeal is allowed and the conviction and penalty imposed by the Magistrate are set aside. The matter is remitted to the Magistrates Court for rehearing before a different Magistrate.

Catchwords:

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – whether conviction unreasonable or not supported by the evidence – admission of fresh evidence of good character on appeal – evidence of good character not tendered before Magistrate due to inadvertence – whether the Magistrate erred in treating the appellant’s conduct as an implied admission – whether the Magistrate erred in failing to direct himself in accordance with Edwards v The Queen – whether the Magistrate erred in drawing conclusions about the witness’ credit – appeal allowed – matter remitted to the Magistrates Court for rehearing

Legislation Cited:

Crimes Act 1900 (ACT) s 60

Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218

Cases Cited:

Baker v Thorpe (1985) 62 ACTR 1

BI v The Queen (No 2) [2018] ACTCA 11
CC v Regina [2010] NSWCCA 337
DF v The Queen [2011] ACTCA 11
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Director of Public Prosecutions v Walker [2011] ACTCA 1
Director of Public Prosecutions v Maan [2010] ACTCA 27
Edwards v The Queen (1993) 178 CLR
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Freeman-Quay v The Queen [2016] ACTCA 43
Foulkes v Coles [2017] ACTSC 178
Fox v Percy [2003] HCA 22; 214 CLR 118
Glanville v Harris [2017] ACTSC 110; 321 FLR 220
Grooms v Toohey [2012] ACTSC 28
Libke v The Queen [2007] HCA 30; 230 CLR 559
Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24
M v The Queen (1994) 181 CLR 487
McKey v Regina [2012] NSWCCA 1
Peverill v Crompton [2010] ACTSC 79
Reg v Morgan [1976] AC 182
RP v R [2015] NSWCCA 215; 90 NSWLR 234
SKA v The Queen [2011] HCA 13; 243 CLR 400
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
W v R [2014] NSWCCA 110
Walto v Gilmour [2015] ACTSC 411

Zoneff v The Queen [2000] HCA 28; 200 CLR 234

Parties:

BI (Appellant)

Brendan Peter Moss (Respondent)

Representation:

Counsel

Ms A Francis(Appellant)

Ms J Campbell (Respondent)

Solicitors

Aulich Criminal Law (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 44 of 2017

Decision under appeal: 

Court/Tribunal:             Magistrates Court

Before:  Magistrate Morrison

Date of Decision:         17 May 2017

Case Title:  [Redacted]

Court File Number:       CC16/1934

LOUKAS-KARLSSON J

Introduction

  1. On 17 May 2017, the appellant was convicted by Magistrate Morrison (the Magistrate) of the offence of an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC16/1934). The appellant appeals against the conviction by way of Notice of Appeal…

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AGLC
BI v Moss [2018] ACTSC 278
Case
[2018] ACTSC 278
Decision Date

CaseChat Overview and Summary

The appeal was brought by BI against a conviction and penalty imposed by Moss, a Magistrate. The dispute arose from a conviction in the Magistrates Court and involved issues pertaining to the admissibility of fresh evidence and the Magistrate's handling of the case. The appellant, BI, contested the conviction on the basis that it was unreasonable or not supported by the evidence, and sought to introduce fresh evidence of good character which had not been presented at the original hearing due to an oversight.

The legal issues before the court included whether the Magistrate erred in treating the appellant's conduct as an implied admission, whether the Magistrate failed to direct himself in accordance with the principles established in Edwards v The Queen, and whether the Magistrate erred in drawing conclusions about the credit of a witness. The court was required to determine if the error in admitting fresh evidence was a fundamental one that warranted the appeal being allowed, and if the overall handling of the case by the Magistrate was flawed.

The court found that the Magistrate had erred in treating the appellant's conduct as an implied admission and in failing to direct himself in accordance with Edwards v The Queen. Additionally, the court determined that the Magistrate had erred in drawing conclusions about the witness’ credit. These errors were deemed fundamental, leading to the conclusion that the conviction was unreasonable and not supported by the evidence. Consequently, the appeal was allowed, and the conviction and penalty imposed by the Magistrate were set aside. The matter was remitted to the Magistrates Court for rehearing before a different Magistrate.

Orders

Orders of the court

The appeal is allowed and the conviction and penalty imposed by the Magistrate are set aside. The matter is remitted to the Magistrates Court for rehearing before a different Magistrate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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