Cant v The Queen - [2002] NTCCA 8

Cant v The Queen [2002] NTCCA 8
PARTIES:CRAIG CANT
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 14 of 2000
DELIVERED:  17 SEPTEMBER 2002
HEARING DATES:  16 SEPTEMBER 2002
JUDGMENT OF:  ANGEL and MILDREN JJ; PRIESTLEY AJ
CATCHWORDS:

CRIMINAL LAW – JURY – indifference of juror – juror made reference to Appellant’s criminal history and other pending charges in jury room – dissension amongst jurors - whether trial judge should question jurors – whether juror or jury ought to be discharged – real suspicion as to bias raised
CRIMINAL LAW – APPEAL – appeal on conviction - trial judge failed to ascertain whether juror biased – whether Crown case was so overwhelming that ‘proviso’ should be applied – irregularity more than having mere prejudicial or inadmissible material before the jury – failure by trial judge amounted to a fundamental error which departed from requirement of fair trial – no room for proviso – conviction quashed and retrial ordered
Criminal Code NT s 373, s 411(2)
Customs Act 1901 Cth s 233B
R v McKeon [1961] NSWR 249, R v Orgles [1994] 1 WLR 108, considered
Webb v The Queen (1993-1994) 181 CLR 41, followed
Wilde v The Queen (1998) 164 CLR 365, approved

REPRESENTATION:
Counsel:
Appellant:P Boulten
Respondent:  R Hanson QC, G Fisher
Solicitors:
Appellant:Dalrymple & Associates
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:               B
Judgment ID Number:
Number of pages:  7

IN COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
Cant v The Queen [2002] NTCCA 8
No. CA 14 of 2000

BETWEEN:
CRAIG CANT
Appellant

AND:
THE QUEEN
Respondent

CORAM: ANGEL and MILDREN JJ; PRIESTLEY AJ
REASONS FOR JUDGMENT
(Delivered 17 September 2002)
THE COURT:

On 5 April 2000 the appellant was convicted following a unanimous verdict of guilty of one count of being knowingly concerned in the importation of a commercial quantity of cannabis resin, contrary to s 233B of the Customs Act1901 (Cth).

The appellant has appealed against his conviction on a number of grounds. After hearing argument on the first ground the Court was unanimously of the opinion that the appeal must succeed. Accordingly the Court ordered that the appeal be allowed, that the conviction be quashed, and that there be a new trial. We said that we would publish our reasons for doing so at a later time. These are our reasons.
The first ground of appeal concerned the failure of the learned trial judge to question a juror about whether, in the circumstances, that juror remained indifferent as between the prosecution and the accused, and the subsequent failure of the learned trial judge to discharge that juror.
The circumstances which arose were that towards the end of the prosecution case, a note was handed to the learned trial judge from one of the jurors which read as follows:
“I believe I should inform you of certain discussions…

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 Cant v The Queen

Details

AGLC: Cant v The Queen [2002] NTCCA 8
Case: [2002] NTCCA 8
Decision Date: 17 SEPTEMBER 2002

CaseChat Overview and Summary

The appeal concerned a conviction for a criminal offence. The appellant, Cant, appealed against his conviction on the grounds that the trial judge erred in failing to adequately address a situation where a juror allegedly referred to the appellant's criminal history and other pending charges during jury deliberations. The appeal was heard by the Court of Criminal Appeal of New South Wales, with judges Angel and Mildren JJ and Priestley AJ presiding.

The central legal issues before the Court were whether the trial judge had a duty to question the juror in question, or the entire jury, upon learning of the juror's alleged comments, and whether, in light of these comments, the juror or the jury ought to have been discharged. The Court also considered whether, even if an error occurred, the conviction should be upheld under the proviso, given the strength of the Crown's case.

The Court reasoned that the juror's comments raised a "real suspicion as to bias" and that the trial judge's failure to ascertain the extent of any bias or prejudice constituted a fundamental error that departed from the requirements of a fair trial. The Court held that the irregularity was more than the mere introduction of prejudicial material, as it involved a direct reference to the appellant's criminal history and other charges by a juror. Consequently, the Court found that there was no room to apply the proviso, as the integrity of the trial process had been compromised.

The Court of Criminal Appeal quashed the conviction and ordered a retrial.

Orders