DF v The Queen

[2011] ACTCA 11

DF v THE QUEEN
[2011] ACTCA 11 (23 June 2011)

APPEAL – appeal against conviction – trial by judge alone – conviction not shown to be unsafe or unsatisfactory – erroneous implementation of the onus of proof in judge’s reasons – application to adduce further evidence refused – appeal allowed – new trial ordered.

Criminal Appeal Act 1912 (NSW) s 6(1)
Supreme Court Act 1933 (ACT) ss 37N, 37O(2), 37O(2)(a)(i)

Azzopardi v The Queen (2001) 205 CLR 50 followed
SKA v The Queen (2011) 276 ALR 423 followed
MFA v The Queen (2002) 213 CLR 606 followed
M v The Queen (1994) 181 CLR 487 followed
Morris v The Queen (1987) 163 CLR 454 followed
Fleming v The Queen (1998) 197 CLR 250 referred to
Fox v Percy (2003) 214 CLR 118 referred to
CDJ v VAJ (1998) 197 CLR 172

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 14 of 2010
No. SCC 14 of 2008

Judges:         Gray P, Rares J and Teague AJ
Court of Appeal of the Australian Capital Territory
Date:            23 June 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 14 of 2010
  )          No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:      DF

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Gray P, Rares J and Teague AJ           
Date:  23 June 2011 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The appellant’s conviction on Count 1 of the indictment be quashed.

1. A new trial on Count 1 of the indictment be held.

IN THE SUPREME COURT OF THE       )          No. ACTCA 14 of 2010
  )          No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:       DF

Appellant

AND: THE QUEEN

Respondent

Judges:  Gray P, Rares J and Teague AJ
Date:  23 June 2011 
Place:  Canberra

REASONS FOR JUDGMENT

GRAY P AND RARES J:

1. This is an appeal against a conviction imposed by a trial judge on a trial by judge alone, against DF (the appellant) that between 1 January 1987 and 31 January 1987 he committed an act of indecency against the complainant that being 15 years of age.

1. We have had the benefit of reading the judgment of Teague AJ and gratefully adopt his account of the facts and do not repeat them except where necessary.

1. As Teague AJ has pointed out in his reasons the primary judge found the complainant to be a convincing witness.  Her Honour concluded that she was satisfied beyond reasonable doubt that the appellant committed the act of indecency alleged in the first count of the indictment in the manner and at the time alleged by the complainant (at [305]).

1. We have concluded that despite the primary judge’s recitation of appropriate directions and warnings in her…