Callander v The Queen - [2004] NTCCA 5

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Callander v The Queen [2004] NTCCA 5

PARTIES: PETER LESLIE CALLANDER

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 6 of 2003 (20010885)

DELIVERED: 16 July 2004

HEARING DATES: 19 & 20 May 2004

JUDGMENT OF: ANGEL, MILDREN & RILEY JJ

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Right to silence – need for jury direction that no adverse inference be drawn from exercise of right to silence – not necessary where possibility of adverse inference being drawn was too remote

Criminal Code, s 411(2); Evidence Act, s 9(3)

Barr v The Queen [2004] NTCCA 1; R v Coyne (1996) 1 Qd R 512; R v Reeves (1992) 29 NSWLR 109; distinguished

Jones v Dunkel direction – not necessary where nothing to suggest material witnesses not called

Edwards direction – Zoneoff direction – need for Edwards direction or Zoneoff direction where Crown invited jury to infer guilt from behaviour – sufficient that invitation of the Crown merely by implication – lies merely one type of guilty behaviour from which Crown may assert inference of guilt – failure to give direction did not result in a substantial miscarriage of justice in the circumstances

Dat Tuan Nguyen (2001) 118 A Crim R 479; applied

Dhanhoa v R (2003) 199 ALR 547; Edwards v The Queen (1993) 178 CLR 193; Zoneoff v The Queen (2000) 200 CLR 234; followed

Whether verdicts unreasonable – whether other hypotheses consistent with innocence – Crown case overwhelming

REPRESENTATION:

Counsel:
Appellant: S J Odgers SC
Respondent: P Elliott

Solicitors:
Appellant: Dalrymple & Associates
Respondent: Director of Public Prosecutions

Judgment category classification: B
Number of pages: 18

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

Callander v The Queen [2004] NTCCA 5
No. CA 6 of 2003 (20010885)

BETWEEN:

PETER LESLIE CALLANDER
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 16 July 2004)

The Court:
[1] The appellant was convicted by a jury of 16 counts of stealing and of 14 counts of false accounting. The charges related to the period between July 1997 and January 1998.
[2] The appellant was employed between approximately 13 May 1997 until 11 January 1998 as the Manager of the Rum Jungle Recreation Club Inc. He was responsible to the club’s committee. His duties included managing the club’s accounts and financial records as well as attending to the club’s banking. He maintained records of the club’s takings from the sale of alcohol for consumption on and off the premises, soft drinks, souvenirs, bar snacks and tobacco. The records also recorded income from membership fees, a coin operated telephone, jukebox, pool tables and the club’s commission from a cigarette machine owned by a third party. A separate bank account was maintained in relation to income generated…

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 Callander v The Queen

Details

AGLC: Callander v The Queen [2004] NTCCA 5
Case: [2004] NTCCA 5
Decision Date: 16 July 2004

CaseChat Overview and Summary

The appellant, Peter Leslie Callander, was convicted by a jury in the Supreme Court of the Northern Territory of 16 counts of stealing and 14 counts of false accounting. The charges related to his employment as Manager of the Rum Jungle Recreation Club Inc. between July 1997 and January 1998, during which time he was responsible for the club's accounts and financial records. The Crown's case was that the appellant deliberately under-reported the club's revenue in the monthly sales report book, thereby stealing the difference between the actual receipts and the recorded amounts.

The Court of Criminal Appeal of the Northern Territory was required to determine several legal issues. These included whether the trial judge erred in failing to direct the jury not to draw an adverse inference from the appellant's exercise of his right to silence, particularly after his refusal to participate in a third police interview. The court also considered whether a *Jones v Dunkel* direction was necessary regarding the Crown's decision not to call two potential witnesses, and whether an *Edwards* or *Zoneff* direction was required concerning the prosecutor's comments on the appellant's manner of answering police questions. Finally, the court had to assess whether the jury's verdicts were unreasonable, considering alternative hypotheses consistent with innocence.

Regarding the right to silence, the court found that while evidence of the appellant's refusal to participate in a third interview was admitted, the Crown did not rely on it as an admission of guilt, and neither party addressed it in their final addresses. The possibility of an adverse inference being drawn by the jury was deemed too remote. The court also held that the two potential witnesses were not material witnesses, thus negating the need for a *Jones v Dunkel* direction. Concerning the *Edwards* direction, the court acknowledged a risk that the jury might have inferred guilt from the prosecutor's remarks about the appellant's answers in the second police interview, but concluded that the failure to give such a direction did not result in a substantial miscarriage of justice, given the lack of a specific request at trial, the jury's awareness of the appellant's reasons for not answering, and the overwhelming nature of the Crown's case.

Ultimately, the Court of Criminal Appeal dismissed the appeal. The court found that the verdicts were not unreasonable, as the Crown's case was overwhelming and any alternative hypotheses consistent with innocence were not sufficiently plausible to create reasonable doubt. The court applied principles from cases such as *Barr v The Queen*, *Edwards v The Queen*, and *Zoneff v The Queen* in its reasoning.

Orders