DPP v Olcer - [2003] VSC 457

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6415 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
EKREM OLCER	Respondent

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JUDGE:	NATHAN J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2003
DATE OF JUDGMENT:	27 November 2003
CASE MAY BE CITED AS:	DPP v Olcer
MEDIUM NEUTRAL CITATION:	[2003] VSC 457

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CRIMES ACT 1958, s.74 – Shoplifting – Non insane automatism – Requires defendant to produce sufficient, reasonably possible expert evidence before consideration of it – Defence assertion unfounded – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. McArdle Q.C.	DPP
For the Respondent	Mr C.B. Boyce	Kenna Crosford & Co

HIS HONOUR:

Ekrem Olcer is a Leading Senior Constable of police. Christine Grant is the police informant who alleged that Olcer committed thefts contrary to the s.74 of the Crimes Act 1958 (“the shoplifting”). The shoplifting is alleged to have occurred at a Bunnings store at Broadmeadows on 27 June 2002. On 27 May 2003, the charges were dismissed by the presiding magistrate at Broadmeadows, apparently on the ground that Olcer was not guilty by reason of non-insane automatism. (But more of this later.) The Director of Public Prosecutions has appealed from the decision dismissing the shoplifting charges.

The questions of law raised in this appeal are:

(1)Whether the magistrate erred in concluding there was sufficient evidence to raise the issue of automatism; and
(2)whether the magistrate had a discretion to dismiss the charges upon the issue of non-insane automatism being raised in the given circumstances.

There is some confusion as to what the magistrate actually did. Her decision, and the transcript, reveals she dismissed the case as an exercise of her discretion grounded upon the authority of Benney v Dowling[1], this has given rise to the second ground of appeal. However, the court record as certified by the Registrar, states that the case was dismissed pursuant to a no‑case submission by the defendant. In the end result, the confusion is not pertinent. Had it been so, I would have been obliged to follow the court record rather than the magistrate’s comments. It appears Registrars in the Magistrates' Court only certify the record as correct after confirmation and approval by the presiding magistrate.
[1][1959] VR 237.

The magistrate did, however, state this:

“Having considered all the evidence before the court and taking the prosecution case at its highest I am not satisfied that the onus falling upon the prosecution has been discharged. I have been referred to the case of Benney v Dowling. In line with that authority I exercise my discretion to discharge the defendant charges dismissed.”

The same issue arises whether there was a no-case submission, a proposition disavowed by Olcer’s counsel, or, the exercise of a discretion. That is, whether there was sufficient evidence raised, so as to require the Crown to displace the contention sometimes referred to as a defence, of non-insane automatism.

The Contention of Non-Insane Automatism

The contention…

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 DPP v Olcer

Details

AGLC: Director of Public Prosecutions v Olcer [2003] VSC 457
Case: [2003] VSC 457
Decision Date: 27 November 2003

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Olcer, the respondent, Olcer, was charged with shoplifting, an offence under the Crimes Act 1958. The matter came before the court on appeal from an earlier conviction. The central issue before the court was whether the trial judge had erred in his direction to the jury on the issue of non-insane automatism, a defence Olcer had raised. Specifically, the court had to determine if the trial judge had correctly assessed the need for expert evidence in support of the defence.

The court found that the trial judge had not properly directed the jury on the necessity for expert evidence to establish the defence of non-insane automatism. The court held that the onus was on the defendant to produce sufficient, reasonably possible expert evidence to support such a defence. The trial judge had failed to make it clear to the jury that the defendant's assertion of non-insane automatism was unfounded unless backed by adequate expert testimony. This was a critical error as it undermined the proper evaluation of the defence presented. Consequently, the court determined that the trial judge's direction to the jury was inadequate, leading to a miscarriage of justice.

The appeal was allowed, and the conviction was quashed. The court directed that the matter be remitted to the Magistrates' Court for retrial. The court emphasised the importance of the trial judge properly instructing the jury on the requirements of the defence of non-insane automatism, ensuring that the defendant's assertions are substantiated with appropriate expert evidence. The respondent was thus granted a new trial to properly assess the defence and evidence presented.

Orders