Featherstone v The Queen; Bloxsome v The Queen - [2020] ACTCA 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Featherstone v The Queen; Bloxsome v The Queen
Citation:	[2020] ACTCA 33
Hearing Dates:	13–14 May 2020
DecisionDate:	3 July 2020
Before:	Murrell CJ, Loukas-Karlsson J and Berman AJ
Decision:	Verdicts on Counts 8 and 10 quashed. Decision on Bloxsome’s sentence appeal reserved. Remaining grounds of appeal dismissed. See [235].
Catchwords:	APPEAL – CONVICTION – Co-Appellants – Unsafe and unsatisfactory verdicts – unreliability of witnesses – miscarriage of justice – plea in bar – application for separate trial – applications to discharge the jury
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 6(1) Criminal Code 2002 (ACT) ss 33, 34, 42, 58, 308, 309, 310, 318(1) Supreme Court Act 1933 (ACT) s 37O(2)
Cases Cited:	AH v The Queen [2019] NSWCCA 152 Fischetti v The Queen [2019] ACTCA 2 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Gilbert v The Queen [2000] HCA 15, 201 CLR 414 Keen v The Queen [2020] NSWCCA 59 Libke v the Queen [2007] HCA 30; 230 CLR 559 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53, 213 CLR 606 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Pell v the Queen [2020] HCA 12; 94 ALJR 394 R v Baladjam (No 49) [2008] NSWSC 1468 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 R v Giam [1999] NSWCCA 53 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 United States v Dixon (1993) 509 US 688 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Parties:	Damien Featherstone (Appellant) Rodney Bloxsome (Appellant) The Queen (Respondent)
Representation:	Counsel J Purnell SC and J Dempster (Appellant Featherstone) M Jones (Appellant Bloxsome) S Drumgold SC (Respondent)
Solicitors Sharman Robertson Solicitors (Appellant Featherstone) Boxall Legal (Appellant Bloxsome) ACT Director of Public Prosecutions (Respondent)
File Numbers:	AC 19 of 2019; AC 21 of 2019
Decisions under appeal:	Court/Tribunal: Before: Date of Decision: Case Title: Citation:	Supreme Court of the ACT Mossop J 1 April 2019 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90
Court/Tribunal: Before: Date of Decision: Case Title: Citation:	Supreme Court of the ACT Mossop J 15 August 2019 R v Bloxsome [2019] ACTSC 217

THE COURT:

Introduction

These are appeals against conviction by Damien Featherstone and conviction and sentence by Rodney Bloxsome.

Crown case

The Crown case at trial was as follows.

On 26 February 2018 Mr Featherstone was at a house occupied by Mr Diaz in Narrabundah. Also there during the course of events were DT (Mr Featherstone’s wife), NQ (a relative of Mr Featherstone), MX (a friend of Mr Diaz), Mr Dimitrov (an associate of Mr Bloxsome), Mr Russell (Mr Bloxsome’s son), and Mr Bloxsome, who is Mr Featherstone’s uncle.

MX had gone to the house to visit Mr Diaz. She had been dropped off near the premises in a car by four men, one…

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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Details

Case: [2020] ACTCA 33
Decision Date: 3 July 2020

CaseChat Overview and Summary

Featherstone and Bloxsome appealed their convictions to the Court of Criminal Appeal of New South Wales. The appeals concerned allegations of unsafe and unsatisfactory verdicts, the unreliability of witnesses, and the occurrence of a miscarriage of justice. The appellants also raised issues regarding pleas in bar, applications for separate trials, and applications to discharge the jury.

The Court was required to determine whether the verdicts returned by the jury were unsafe and unsatisfactory, particularly in light of concerns about witness reliability. Further, the Court had to consider whether the trial judge erred in refusing applications for separate trials and in refusing to discharge the jury, and whether these decisions, or other aspects of the trial, resulted in a miscarriage of justice. The Court also considered the appeal against Bloxsome's sentence.

The Court found that the verdicts on Counts 8 and 10 were unsafe and unsatisfactory, quashing the convictions on those counts. However, the Court dismissed the remaining grounds of appeal relating to the other convictions. The decision on Bloxsome's sentence appeal was reserved.

Orders

Orders of the court

Verdicts on Counts 8 and 10 quashed. Decision on Bloxsome’s sentence appeal reserved. Remaining grounds of appeal dismissed. See [235].

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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