Chifuntwe v The Queen

[2018] ACTCA 12

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

MWJ v The Queen [2005] HCA 74; 80 ALJR 329

SY v R [2018] NSWCCA 6

The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308

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

1. 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).

1. 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.

1. 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

1. 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.

1. 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…