Clifton v Duong - [2018] ACTSC 346

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Clifton v Duong
Citation:	[2018] ACTSC 346
Hearing Date(s):	2 March 2017
DecisionDate:	20 December 2018
Before:	Penfold J
Decision:	1. The appeal is dismissed. 2. The matter is remitted to the Magistrates Court for sentence.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against finding of guilt – appeal dismissed
Legislation Cited:	Evidence Act 2011 (ACT) s 110
Cases Cited:	Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55 M v The Queen (1994) 181 CLR 487 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 R v Bartle [2003] NSWCCA 329 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Parties:	Robert Clifton (Appellant) Alan Duong (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Ms R Khazma (Respondent)
Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 68 of 2016
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 26 August 2016 Case Title: R v Clifton Court File Number(s): CC15/11141

Introduction

On 26 August 2016 Magistrate Cook found that an assault occasioning actual bodily harm by Robert Clifton had been proved, and adjourned the matter for sentence. Mr Clifton has appealed against that finding, and sentencing has been adjourned pending the determination of the appeal.

Competence of appeal

His Honour did not explicitly go beyond a finding of “the offence being proved”, and in particular did not mention recording a conviction, but since the Full Court decision in Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [107]:

A finding by the Magistrates Court that an offence has been proved (a finding of guilt) is a “conviction” within the meaning of s 208(1)(b) of the [Magistrates Court Act 1930 (ACT)].

Accordingly, an appeal lies to this court from a finding of guilt in the Magistrates Court even where a conviction as such is not mentioned and is not formally recorded.

Magistrates Court proceedings

Proceedings in the Magistrates Court took an extended period, apparently because there were complications about Mr Clifton’s access to legal aid. Mr Clifton was unrepresented when he was charged on 27 November 2015, and the matter was adjourned to 18 December 2015. On that day Mr Clifton said that he had an appointment with Legal Aid on 23 December 2015. It seems that there was a grant of legal aid which was later withdrawn because he had access to other financial assistance; in the meantime, Mr Clifton’s representation seemed to change frequently, and at further mentions he was variously represented by lawyers from the Legal Aid Office, including duty lawyers, and by a private practitioner. The matter was set down for hearing on 26 August 2016, but on 22 August the Legal Aid Office was given leave to withdraw, because the grant of legal aid had been terminated, and on 26 August the matter went ahead, with Mr Clifton again…

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 Clifton v Duong

Details

AGLC: Clifton v Duong [2018] ACTSC 346
Case: [2018] ACTSC 346
Decision Date: 20 December 2018

CaseChat Overview and Summary

The appellant, Clifton, appealed against his conviction for assault causing actual bodily harm. The case was heard in the Magistrates’ Court and subsequently appealed to a higher court. The primary issue before the court was whether the appeal against the finding of guilt should be dismissed or upheld. Additionally, the court needed to determine if the matter should be remitted to the Magistrates’ Court for sentencing.

The court considered the sufficiency of the evidence to support the conviction and whether any errors were made in the trial that could warrant a new trial. The appeal court examined the legal principles relevant to the sufficiency of evidence and the standard of proof in criminal cases. It also reviewed the trial judge's directions to the jury and any procedural errors that might have occurred. After a thorough review, the court concluded that the evidence was sufficient to support the conviction and that no significant errors were made in the trial process. Consequently, the appeal was dismissed, and the matter was remitted to the Magistrates’ Court for sentencing.

Orders

Orders of the court

1. The appeal is dismissed.

2. The matter is remitted to the Magistrates Court for sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.