SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Chifuntwe v The Queen |
Citation: | [2018] ACTCA 12 |
Hearing Date: | 12 February 2018 |
DecisionDate: | 24 April 2018 |
Before: | Murrell CJ, Mossop and Wigney JJ |
Decision: | The appeal is allowed. On the charge of robbery, the verdict of guilty is set aside and a verdict of not guilty is entered. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against guilty conviction – Whether the decision at trial was unreasonable – Whether the decision at trial was unsupportable by the evidence – The rule in Browne v Dunn – Whether all reasonable hypotheses consistent with innocence excluded |
Cases Cited: | Browne v Dunn (1894) 6 R 67 Jones v The Queen (1997) 191 CLR 439 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Mulvihill v R [2016] NSWCCA 259 |
Parties: | Kalonga Chifuntwe (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms E McLaughlin (Appellant) Ms M Jones (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 29 of 2017 |
Decision under appeal: | Court/Tribunal: ACTSC Before: Elkaim J Date of Decision: 15 June 2017 Case Title: R v Chifuntwe (No 2) Citation: [2017] ACTSC 134 |
THE COURT:
The trial
Sitting as a judge alone, the trial judge found that, on 16 May 2016, the appellant committed the offence of aggravated robbery (robbery in the company of an unknown person).
The trial judge found the appellant not guilty of a second offence: that, on 18 May 2016, the appellant used an offensive weapon (the motor vehicle that he was driving) against a police officer intending to prevent or hinder his lawful apprehension. His Honour was not satisfied beyond reasonable doubt that the appellant had deliberately driven his vehicle at a police officer; rather, his primary intention may have been to flee the scene. His Honour found the appellant guilty of a backup charge of failing to stop a motor vehicle for police.
At the trial of the aggravated robbery charge, the contentious issue was whether the appellant was one of two men who had robbed the complainant of a Mercedes-Benz vehicle. The prosecution case was circumstantial.
The appeal
The appellant appealed against the conviction for robbery in company on the sole ground that the finding of guilt was unreasonable and/or was not supported by the evidence.
In written submissions, the appellant advanced three principal arguments:
(a)Because of non-compliance with the rule in Browne v Dunn (1894) 6 R 67 (Browne v Dunn), the trial judge should not have made negative credit findings about the appellant’s evidence.
(b)Two circumstances upon which the trial judge relied in finding that the appellant was one of the robbers were inherently of little or no probative value.
(c)Taken together, the established circumstances were…
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- Chifuntwe v The Queen [2018] ACTCA 12
- Case
- [2018] ACTCA 12
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the trial judge's decision was unreasonable or unsupportable by the evidence. This involved considering whether the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence, and whether the rule in *Browne v Dunn* had been properly applied.
The Court found that the evidence presented at trial did not exclude all reasonable hypotheses consistent with innocence. Specifically, the Court noted that the identification evidence was weak and that the prosecution had failed to adequately address alternative explanations for the appellant's presence in the vicinity of the crime. The Court concluded that the verdict of guilty was unreasonable and could not be supported by the evidence.
Consequently, the appeal was allowed, the verdict of guilty on the charge of robbery was set aside, and a verdict of not guilty was entered.
Orders
Orders of the court
The appeal is allowed. On the charge of robbery, the verdict of guilty is set aside and a verdict of not guilty is entered.
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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