CEV v The Queen

Case [2005] NTCCA 10

CEV v The Queen [2005] NTCCA 10

PARTIES:CEV

v

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 22 of 2003 (20109084)

DELIVERED:  18 August 2005

HEARING DATES:  23 June 2005

JUDGMENT OF:  MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW – jury trial – direction to jury – whether trial judge erred in direction to the jury in respect of prior inconsistent statements

CRIMINAL LAW – jury trial – direction to jury – question by jury as to whether a majority verdict was possible – appropriate direction given

CRIMINAL LAW – sentence – whether sentences excessive – whether non-parole period excessive – sexual intercourse after victim drugged – whether sentence imposed should have been reduced to avoid double punishment – whether sentences should be totally concurrent – principles relevant to fixing non-parole period – appeal allowed – sentence and non-parole period varied

Criminal Code s 132(2), s 132(2)(a), s 132(4), s 176, s 192, s 192(1), s 192(2)(c), s 192(3) and s 429; Prisons (Correctional Services) Amendment Act (No 2) 1994 s 6; Sentencing Act s 54(1), s 55, s 55A and s 58

Applied
Bugmy v The Queen (1990) 169 CLR 525; Deakin v The Queen (1984) 54 ALR 765; Miles v The Queen [2001] NTCA 9; Pearce v The Queen (1998) 194 CLR 610; The Queen vMulholland (1991) 1 NTLR 1; The Queen v Muto and Eastey [1996] 1 VR 336

Referred to
Alford vMagee (1951-52) 85 CLR 437; Black v The Queen (1993) 179 CLR 44; Cheatle and Ors v R (1993) 177 CLR 541; Fittock v The Queen (2001) 11 NTLR 52; Markarian v The Queen (2005) 215 ALR 213; Peers v The Queen (1999) 154 FLR 270; Spencer v The Queen (2002-2003) 172 FLR 471; Tipiloura v The Queen (1992) 2 NTLR 216

REPRESENTATION:

Counsel:

Appellant:T. Berkley (re conviction)
S. Cox QC (re sentence)

Respondent:  D. Lewis

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:         B

Judgment ID Number:  MIL05352 / SOU0509

Number of pages:  21

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

CEV v The Queen [2005] NTCCA 10

No. CA 22 of 2003 (20109084)

BETWEEN:

CEV

Appellant

AND:

THE QUEEN

Respondent

CORAM:     MILDREN, RILEY & SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 18 August 2005)

The Court:

Introduction

  1. On 18 November 2003 the appellant filed an application for leave to appeal against his conviction and sentence in the Supreme Court of the Northern Territory on 6 May 2003 and 10 June 2003 respectively. The proposed grounds of appeal were contained in an affidavit of Ian Leonard Read sworn on 18 November 2003. On 19 November 2003 the appellant filed an application for an extension of time within which to apply for leave to appeal against his conviction…

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AGLC
CEV v The Queen [2005] NTCCA 10
Case
[2005] NTCCA 10
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against conviction and sentence by the appellant, CEV, following a jury trial in the Supreme Court of the Northern Territory. The appellant had pleaded not guilty to five counts, including sexual intercourse without consent, indecent dealing with a child under sixteen with circumstances of aggravation, and administering a stupefying drug to the complainant.

The primary legal issues before the Court of Appeal were whether the trial judge erred in her directions to the jury regarding prior inconsistent statements, and whether she misdirected the jury concerning the procedure for majority verdicts. The Court was required to determine if the judge's directions on prior inconsistent statements were sufficiently specific to the facts of the case, and if her explanation of majority verdict procedures was consistent with established legal principles, particularly those in *Black v The Queen*.

The Court of Appeal found that the trial judge did not err in her directions. Her Honour had adequately explained how the principles concerning prior inconsistent statements applied to the evidence presented. Furthermore, when the jury inquired about the possibility of a majority verdict, the judge's direction, which informed them of the relevant provisions of the Criminal Code (NT) and their obligation to strive for unanimity, was deemed appropriate and consistent with legal precedent.

The Court of Appeal allowed the appeal in part, varying the sentence and non-parole period imposed. This variation was based on considerations of whether the sentences were excessive, whether the non-parole period was unduly long, and whether the sentences should have been concurrent to avoid double punishment, particularly in light of the offence involving sexual intercourse after the victim had been drugged.

Orders

Orders of the court

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Background

Background to the litigation

The proposed grounds of appeal gave rise to two principal issues in the application for leave to appeal against conviction. First, was there an arguable case that the learned trial judge erred in that she merely directed the jury about the principles as to prior inconsistent statements and then left the jury to apply the principles to the case before them without telling the jury how the principles applied to the prior inconsistent statements in the case? Secondly, was there an arguable case that the learned trial judge misdirected the jury when she told the jury about the procedure to be followed if the members of the jury could not make a unanimous decision in relation to a specific charge because the direction that she gave was inconsistent with the principles enunciated in Black v The Queen (1993) 179 CLR 44? In our opinion the learned trial judge did not err nor did she misdirect the jury. There was no arguable case of error or misdirection. The learned trial judge did tell the jury about how the principles as to prior inconsistent statements applied to the facts of the particular case and if a jury does ask about what is the procedure to be followed in the event of a deadlock about a specific charge the jury should be told in similar terms to those used by her Honour, what the Criminal Code (NT) provides and what their obligations are in trying to reach a unanimous decision when deliberating upon a verdict. Factual Background On 28 April 2003 the appellant before a judge and jury entered a plea of not guilty to 5 counts pleaded in an indictment dated 24 April 2003. Count 1 charged that between 1 June 2001 and 17 June 2001, the appellant had sexual intercourse with SV (the complainant) without her consent contrary to s 192(3) of the Criminal Code. Count 2 charged that contrary to s 132(2)(a) and s 132(4) of the Criminal Code between 1 June 2001 and 17 June 2001, the appellant unlawfully and indecently dealt with the complainant, a child under the age of sixteen years, and the indecent dealing involved the following circumstance of aggravation, namely that at the time of the offence the appellant had the complainant under his care. Count 3 charged that contrary to s 176 of the Criminal Code on or about 16 June 2001, with intent to commit or facilitate the commission of a crime, namely indecent dealing with a child under the age of 16 years, the appellant administered a stupefying and overpowering drug, namely Temazepam to the complainant. Count 4 charged that contrary to s 192(3) of the Criminal Code on or about 16 June 2001, the appellant had sexual intercourse with the complainant without her consent. Count 5 charged that contrary to s 132(2) and s 132(4) of the Criminal Code on or about 16 June 2001, the appellant unlawfully and indecently dealt with the complainant, a child under the age of sixteen years, and the indecent dealing involved the following circumstances of aggravation, namely that at the time of the offence the appellant had the complainant under his care.

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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