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Connelly v Allan

Connelly v Allan

Case [2011] ACTSC 170 13 October 2011

Appeal

Breach of Contract

Aggravated & Exemplary Damages

Sentencing

Vicarious Liability

Criminal Law

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TODD ANDREW CONNELLY v RUSSELL GRANT ALLAN
[2011] ACTSC 170 (13 October 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal allowed in part.

CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – identification – voice identification – whether warning required under s 116 of the Evidence Act 1995 (Cth) – warning required.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – whether miscarriage of justice in absence of warning about voice identification evidence – no miscarriage of justice.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – whether sentencer erred in rejecting a community service condition to a good behaviour order when sentence of imprisonment suspended – error found and appellant to be re-sentenced.

Domestic Violence and Protection Orders Act 2001 (ACT)
Magistrates Court Act 1930 (ACT), Div 3.10.2
Evidence Act 1995 (Cth) 1995 (Cth), s 116
Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110

Hanel v Shoemark [2010] ACTSC 67
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Grbic v Pitkethly (1992) 38 FCR 95
Sharrett v Gill (1993) 65 A Crim R 44
Parker v Espinoza (1996) 85 A Crim R 336
Johnson v Giumelli (2003) 175 FLR 467
Dennis v Davis (2010) 204 A Crim R 1
Fazio v Castledine (2007) 168 A Crim R 391
Barry v Police (2009) 197 A Crim R 445
R v Green (2001) 78 SASR 463
Fleming v The Queen (1998) 197 CLR 250
Tatam v Svikart [1999] NTCA 146
Domican v The Queen (1992) 173 CLR 555
Dhanhoa v The Queen (2003) 217 CLR 1
Gardiner v The Queen (2006) 162 A Crim R 233
R v Taylor (2008) 2 ACTLR 216
R v D (2008) 2 ACTLR 225
R v Trudgett (2008) 70 NSWLR 696
R v Taylor (No 2) [2008] ACTSC 97
Longfield v Glover (2005) 191 FLR 332
Pearce v The Queen (1998) 194 CLR 610

AB v The Queen (1999) 198 CLR 111

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 5 of 2009

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 13 October 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 5 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TODD ANDREW CONNELLY
Appellant

AND:RUSSELL GRANT ALLAN
Respondent

ORDER

Judge:  Refshauge ACJ
Date:  13 October 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction be dismissed.

The appeal against sentence be upheld.

Todd Andrew Connelly be re-sentenced.

The parties be heard on re-sentencing.

The appellant, Todd Andrew Connelly, was in a relationship with a woman for about eight years but it ended in mid 2007.

As a result of events surrounding the termination of the relationship, Mr Connelly’s former partner sought a Domestic Violence Order and one was granted under the Domestic Violence and…

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 Connelly v Allan

Details

AGLC: Connelly v Allan [2011] ACTSC 170
Case: [2011] ACTSC 170
Decision Date

CaseChat Overview and Summary

The case involved an appeal by Todd Andrew Connelly against his conviction and sentence for breaching a Domestic Violence Order and a Good Behaviour Order. The appeal was heard by the Supreme Court of the Australian Capital Territory. The appeal against conviction was dismissed, but the appeal against sentence was upheld. Connelly was to be re-sentenced.

The main issues in the appeal were whether the learned magistrate failed to warn herself adequately about the voice identification evidence and whether the sentence was manifestly excessive or inappropriate. The appeal against conviction focused on the adequacy of the warning required under s 116 of the Evidence Act 1995 (Cth) about voice identification evidence. The court found that while a warning should have been given, it would have been significantly confined and would not likely have affected the decision of the magistrate. Therefore, there was no miscarriage of justice, and the appeal against conviction was dismissed.

Regarding the appeal against sentence, the court found that the sentence imposed by the magistrate was too severe for the nature of the offences committed. The court considered that a suspended sentence with a Good Behaviour Order and community service conditions would be more appropriate, given the circumstances of the case. The appeal against sentence was upheld, and Connelly was to be re-sentenced. The court invited the parties to provide any further material and submissions on the re-sentencing.

Orders