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DW v The Queen

DW v The Queen

Case [2004] ACTCA 22 24 November 2004

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DW v THE QUEEN [2004] ACTCA 22 (24 November 2004)

COURTS AND TRIBUNALS – criminal trial by judge alone – duty to give reasons.
CRIMINAL LAW – appeal against convictions and sentence – whether verdicts unsafe and unsatisfactory – whether sentence is manifestly excessive.

Supreme Court Act 1933 (ACT), s 68C
Jervis Bay Territory Acceptance Act 1915 (Cth)
Criminal Procedure Act 1986 (NSW), s 33

M v The Queen (1994) 181 CLR 487
Fleming v The Queen [1998] HCA 68
R v Keyte (2000) 78 SASR 68
Pettitt v Dunkley [1971] 1 NSWLR 376

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Wright v Australian Broadcasting Commission [1977] 1 NSWLR
Selvanayagam v University of the West Indies [1983] 1 WLR 585
Papps v Police (2000) 77 SASR 210
NRMA v Tatt (1989) 94 FLR 339
R v Power [2003] SASC 77

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

No. ACTCA 39-2003
No. SCC 117 of 2002

Judges: Crispin P, Connolly and Selway JJ
Court of Appeal of the Australian Capital Territory
Date: 24 November 2004

IN THE SUPREME COURT OF THE     )          No. ACTCA 39-2003
  )          No. SCC 117 of 2002
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

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

BETWEEN:DW
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Crispin P, Connolly and Selway JJ
Date:  24 November 2004
Place:  Canberra

THE COURT ORDERS THAT:

the conviction for the offence charged in the second count in the indictment be set aside and, in lieu thereof, a verdict of acquittal be entered;

the sentence for that offence be set aside, thereby reducing the total effective sentence from 10 years’ imprisonment to 9 years’ and 9 months’ imprisonment;

the non-parole period of 4 years and 9 months be set aside and, in lieu thereof, there be a non-parole period of 4 years and 6 months to commence on 10 May 2002 and expire on 10 November 2006;

the appeal otherwise be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 39-2003
  )          No. SCC 117 of 2002
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

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

BETWEEN:DW
Appellant

AND:THE QUEEN
Respondent

Judges:  Crispin P, Connolly and Selway JJ
Date:  24 November 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by the appellant against his conviction for a number of offences and the severity of sentences imposed upon him, the overall effect of which required him to serve 10 years’ imprisonment subject to a non-parole period of 4 years and 9 months.

The appellant had been arraigned before Gray J on the following counts:

1. . . . THAT [the appellant] between 1 January 1988 and 31 December 1989 in…

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 DW v The Queen

Details

AGLC: DW v The Queen [2004] ACTCA 22
Case: [2004] ACTCA 22
Decision Date: 24 November 2004

CaseChat Overview and Summary

The appellant, DW, appealed against convictions and sentence imposed by a judge sitting alone in the Supreme Court of Queensland. The appeal concerned the adequacy of the reasons provided by the trial judge for their verdicts and the severity of the sentence imposed.

The central legal issues before the Court of Appeal were whether the verdicts of guilt were unsafe and unsatisfactory, and whether the sentence was manifestly excessive. A further issue, arising from the judge-alone trial, was whether the trial judge had discharged their duty to provide sufficient reasons for their findings of fact and application of the law.

The Court of Appeal found that the trial judge's reasons for conviction on one count were inadequate, leading to the conclusion that the verdict on that count was unsafe and unsatisfactory. The court applied the principles governing the duty of a judge to give reasons in a criminal trial, particularly in judge-alone proceedings, emphasizing the need for reasons to be sufficiently detailed to enable appellate review. The court also considered the principles for assessing whether a sentence is manifestly excessive.

Consequently, the Court of Appeal ordered that the conviction for the offence charged in the second count of the indictment be set aside and, in lieu thereof, a verdict of acquittal be entered. The appeal in respect of other convictions and the sentence was dismissed.

Orders

Orders of the court

the conviction for the offence charged in the second count in the indictment be set aside and, in lieu thereof, a verdict of acquittal be entered;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

DW v The Queen [2004] ACTCA 22

Most Recent Citation

R v Barrowman [2007] SASC 28

Cases citing this decision · 7 of 7 shown

Sweeney v He
[2023] NSWCA 68

…orporation [2021] NSWCA 71 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139 E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ellis v R [2015]…
Pascoe & Larsen
[2022] FedCFamC1A 64 Para 10

…c Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]. [6] Wang v State of New South Wales [2019] NSWCA 263 at [62]–[63]. [7] DW v The Queen [2004] ACTCA 22 at [27], referring to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at [385]–[386] and Soulemezis v Dudley (Holdings) P…
Prouten v Chapman
[2021] NSWCA 207 Para 32

…2] (Payne JA; Leeming JA and Simpson AJA agreeing); DW v The Queen (2004) 150 A Crim R 139 at 147 [27] (Crispin P, Connolly and Selway JJ); [2004] ACTCA 22 (“DW v The Queen”), referring to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 (Kirby P), 269-270 (Mahoney JA) and 280 (McHugh JA) (“Soulem…
Fuller v Albert (No 2)
[2021] NSWCA 183 Para 20

…ral scope of the duty to give reasons is to explain the decision, not to write an exhaustive treatise on every aspect of the trial ( DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139 at [27], referring to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 and Sou…
Maloney v Heath
[2016] NTSC 62

…[2007] NTSC 23; Azzopardi v The Queen [2001] HCA 25, (2001) 205 CLR 50; Bird v Peach [2006] NTCA 7, (2006) 17 NTLR 230; DW v The Queen [2004] ACTCA 22, (2004) 150 A Crim R 139; Faatele v Cassidy [2013] NTSC 53; M v R [1994] HCA 63, (1994) 181 CLR 487; Liberato v The Queen [1985] HCA 66, (1985) 159 CLR 507; Palmer…
R v Wheeler
[2015] SASCFC 83 Para 5

…another … It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be clearly inferred… [9] [2004] ACTCA 22, (2004) 150 A Crim R 139. [10] [2004] ACTCA 22 at [27], (2004) 150 A Crim R 139 at 147.…
R v Barrowman
[2007] SASC 28 Para 7

…The analysis of Perry J was cited with approval in the Federal Court in a joint judgment of Crispin P, Connolly and Selway JJ: DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 130. At [28] the Court preferred his Honour’s expression of the obligation to the arguably more demanding formulation in Papps v Police…

View all 7 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Keyte
[2022] NZHC 1063 Para 1

…In R v Keyte (2000) 78 SASR 68, after finding that there was an implied obligation for a judge to give reasons after a trial by judge alone even in the absence of a statutory requirement to record principles of law or findings of fact, Doyle CJ, with whose reasons for judgment Wicks J agreed, proceeded to cited an o…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 1

…with whose reasons for judgment Wicks J agreed, proceeded to cited an oft-quoted passage from the judgement of Asprey JA in Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 in which his Honour had said that “the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understandi…
R v Power
[2003] SASC 77 Para 1

…ry consequence of the duty to give reasons. In this regard we agree with the reasons of Perry J (with whom Williams and Bleby JJ agreed) in R v Power [2003] SASC 77 at [59] and [63]-[65]:…
R v Keyte
[2000] SASC 382 Para 1

…In R v Keyte (2000) 78 SASR 68, after finding that there was an implied obligation for a judge to give reasons after a trial by judge alone even in the absence of a statutory requirement to record principles of law or findings of fact, Doyle CJ, with whose reasons for judgment Wicks J agreed, proceeded to cited an…
Papps v Police
[2000] SASC 183 Para 1

…ty to give reasons includes a duty on the trier of fact to state expressly the reasons for rejecting the credibility of witnesses: see Papps v Police (2000) 77 SASR 210 at 218-219; NRMA v Tatt (1989) 94 FLR 339 at 353. In our view this is not a necessary consequence of the duty to give reasons. In this regard we agre…
Fleming v The Queen
[1998] HCA 68 Para 1

…osecutions, and there is nothing in the terms of s 68C that purports to relieve trial judges of that requirement. Furthermore, in Fleming v The Queen [1998] HCA 68 Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ dealt with a similar issue in relation to s 33 of the Criminal Procedure Act 1986 (NSW) which is in…
M v the Queen
[1994] HCA 63 Para 1

…Ground (i) raised what is often referred to as the “unsafe and unsatisfactory” ground of appeal. In M v The Queen (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ said:…
[1983] 1 WLR 585
[1983] 1 WLR 585 Para 1

…ake explicit findings on every disputed aspect of the evidence if such findings can be clearly inferred: Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 588 (though this decision has been criticised: see Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 281).…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 1

…uty to provide reasons depended upon the scope for appellate review and went on to express agreement with the following remarks of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259:…

Legislation cited in this decision · 3

Criminal Procedure Act 1986 (NSW)
33 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68C 2 mentions (from Para 1)
Jervis Bay Territory Acceptance Act 1915 (Cth)
1 mention (from Para 1)