TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 4 of 2021 (22003241)
DELIVERED ON: 26 May 2022
HEARING DATE: 29 November 2021
JUDGMENT OF: Grant CJ, Blokland and Barr JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Application of proviso
Whether miscarriage of justice occasioned by prosecutor’s submission to jury concerning accused’s motive to lie – Improper for prosecutor to invite jury to test accused’s evidence according to interest in outcome of trial – Whether trial judge adequately directed jury regarding impermissible reasoning – Potential for miscarriage averted by adequate directions – Even assuming miscarriage, appeal should be dismissed in application of proviso – No ‘substantial miscarriage’ occurred – Consideration of record as a whole discloses applicant’s guilt proved to the criminal standard – Appeal dismissed.
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 44
IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
DC v The Queen [2022] NTCCA 8
No. CA 4 of 2021 (22003241)
BETWEEN:
DC
Applicant
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, BLOKLAND & BARR JJ
REASONS FOR DECISION
(Delivered 26 May…
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.
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AGLC
DC v The Queen [2022] NTCCA 8
Case
[2022] NTCCA 8
Decision Date
CaseChat Overview and Summary
The Supreme Court of the Northern Territory, Court of Criminal Appeal, heard an appeal by DC against his conviction for an offence against a seven-year-old complainant. The applicant's central argument was that a prosecutor's submission to the jury, suggesting the applicant had a motive to lie due to his interest in the outcome of the trial, constituted a miscarriage of justice unless adequately addressed by the trial judge. This contention raised three key questions for the court's determination: whether the prosecutor's submission was improper, whether the trial judge's directions cured any resulting prejudice, and if not, whether the proviso could be applied.
The court was required to consider whether the prosecutor's submission was improper in inviting the jury to assess the applicant's evidence based on his interest in the trial's outcome. If found to be improper, the court had to determine if the trial judge's directions to the jury were sufficient to mitigate any prejudice caused by such a submission. Finally, if the directions were deemed insufficient, the court needed to assess whether the proviso, which allows an appeal to be dismissed despite a miscarriage of justice if no substantial miscarriage has occurred, could be applied.
The court reasoned that it is improper for a prosecutor to invite a jury to test an accused's evidence solely on the basis of their interest in the outcome of the trial. However, the court found that the trial judge's directions adequately addressed this potential issue, thereby averting a miscarriage of justice. Even if a miscarriage were assumed to have occurred, the court concluded that the proviso could be applied because no substantial miscarriage of justice had occurred, as the record as a whole demonstrated the applicant's guilt beyond a reasonable doubt. Consequently, the appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant’s contention is that where a party invites the jury to reason in an impermissible manner then, unless the judge directs the jury that they may not reason in that manner, there will be a miscarriage of justice and, subject to the application of the proviso, a new trial will be required. That contention is said to give rise to the following three questions for determination: (1)Was the submission of the prosecutor improper?(2)If the submission was improper, did the trial judge’s directions cure the prejudice?(3)If the directions were not sufficient, can the proviso be applied?Background and procedural history The complainant was seven years old at the time of the alleged offending. His mother and the applicant are first cousins. The complainant called the applicant ‘Uncle’. On 23 January 2020, the complainant spent time at the Alice Springs home where the applicant lived with his mother, auntie and grandmother. The alleged offending took place in the applicant’s bedroom. During the course of the visit, the complainant had vomited in the applicant’s room and his mother came to collect him. On the journey home, the complainant’s mother enquired as to what was wrong. The complainant’s response to his mother’s question led her to contact the police. The complainant participated in a formal interview with police (known as a child forensic interview) that evening, which was recorded and played to the jury as part of the complainant’s evidence. In the child forensic interview, the complainant said that the applicant had put his finger in his ‘bottom’. He demonstrated the applicant’s actions by making a circling motion with his finger, which he described as ‘wriggling all around’. He told the applicant to stop but the applicant ‘didn’t listen’. The complainant also alleged that the applicant squeezed his penis, which he referred to as his ‘front part’ or his ‘wee’. He told police that this had also happened ‘a lot of times’ in the past.[1] The principal line of questioning pursued by defence counsel in the cross-examination of the complainant was that he had made up a story about the applicant because the applicant had been mean to him, by not letting him play his favourite game on the applicant’s PlayStation.[2] The complainant denied that suggestion. The applicant gave evidence in his own case. He agreed in cross-examination that he had had ‘a hard time from a number of family members’ over the alleged incident.[3] However, he denied that he had inserted his finger into the complainant’s anus or that he had grabbed him on the penis, whether on the occasion the subject of the charge or on any previous occasion.[4] The prosecutor did not cross-examine the accused on the basis that he had a motive to lie in order to avoid criminal sanction. The furthest the cross-examination went in that respect was a suggestion that the accused felt shame when he was arrested by police in relation to the allegations, and that the matter had caused ructions within his family.[5]