Davey v Miller - [2018] ACTSC 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Davey v Miller
Citation:	[2018] ACTSC 32
Hearing Date:	11 December 2017
DecisionDate:	27 February 2018
Before:	Burns J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – Appeal from the Magistrates Court – appeal from convictions – whether the decision was unsafe and unsatisfactory – whether the Magistrate erred in admitting tendency evidence – whether findings of fact not open on evidence – DNA evidence – record of interview – whether Magistrate able to dismiss appellant’s denials of wrongdoing in interview without evidence of internal inconsistency or inherent implausibility – audio-visual recording – consideration of DNA evidence – only one of relevant circumstances EVIDENCE – Tendency – s 97 of Evidence Act 2011 (ACT) – probative value of the tendency evidence – characterisation of conduct – Hughes v The Queen [2017] HCA 20; 92 ALJR 52 – purpose of adducing the tendency evidence in this case was to establish the identity of the offender – significance of the probative value of the tendency evidence is to be assessed in the light of other evidence called by the prosecution – species of circumstantial evidence
Legislation Cited:	Crimes Act 1900 (ACT) s 28(2)(b) Crimes Act 1900 (NSW) s 308E(1) Criminal Code 2002 (ACT) s 311 Domestic Violence and Protection Orders Act 2008 (ACT) s 90(2) Evidence Act 1995 (NSW) Evidence Act 2008 (Vic) Evidence Act 2011 (ACT) ss 95, 97, 101
Cases Cited:	Chamberlain v R (No 2) (1984) 153 CLR 521 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 R v Hillier [2007] HCA 13; 228 CLR 618 The Queen v Baden-Clay [2016] HCA 35 Velkoski v The Queen [2014] VSCA 121; 45 VR 680
Parties:	Adam Davey (Appellant) Daniel Miller (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Mr T Hickey (Respondent)
Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 55 of 2017
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 27 August 2017 Case Title: R v Adam Davey Court File Numbers: CC15/2559; CC15/2560; CC15/2561

BURNS J:

On 23 June 2017, Magistrate Campbell convicted the appellant of the following three offences:

one charge contrary to s 311 of the Criminal Code 2002 (ACT) alleging that on 27 August 2013 the appellant entered a building, namely, [redacted] in Charnwood, as a trespasser with intent to commit an offence that involved causing harm to anyone in the building (CC2015/2559);

one charge contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) alleging that the appellant, being subject to a protection order under the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT), who had been personally served with a copy of the protection order, did on 27 August 2013, in the Australian Capital Territory contravene the protection order…

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 Davey v Miller

Details

AGLC: Davey v Miller [2018] ACTSC 32
Case: [2018] ACTSC 32
Decision Date: 27 February 2018

CaseChat Overview and Summary

In Davey v Miller, the appellant, Davey, appealed against his conviction and sentence in the Magistrates Court of the ACT. The appellant was convicted of assault occasioning actual bodily harm and unlawful deprivation of liberty. The primary legal issues for determination were whether the decision of the Magistrate was unsafe and unsatisfactory, whether the Magistrate erred in admitting tendency evidence, and whether the findings of fact were not open on the evidence. The appeal hinged on the admission of DNA evidence and a record of an interview, as well as the Magistrate's assessment of the appellant's denials of wrongdoing during the interview.

The court considered the probative value of the tendency evidence under section 97 of the Evidence Act 2011 (ACT), focusing on its relevance in establishing the identity of the offender. The court examined the characterisation of the conduct as per Hughes v The Queen, which emphasised the importance of assessing the significance of the probative value of the tendency evidence in light of other evidence. The appellant argued that the Magistrate dismissed his denials without evidence of internal inconsistency or inherent implausibility, but the court found that the Magistrate was entitled to consider the totality of the evidence, including the audio-visual recording and the DNA evidence, which was only one of the relevant circumstances.

The appeal was dismissed by the court, which found that the decision of the Magistrate was neither unsafe nor unsatisfactory. The court upheld the convictions, noting that the Magistrate was entitled to consider the DNA evidence and the record of the interview, which collectively supported the findings of fact. The court concluded that the probative value of the tendency evidence, when assessed in the context of the other evidence, was sufficient to support the convictions. The appeal was thus dismissed, and the convictions and sentences were affirmed.

Orders

Orders of the court

The appeal is dismissed.

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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