Friel v Rigby - [2019] NTSC 48

CITATION:Friel v Rigby [2019] NTSC 48
PARTIES:FRIEL, Joseph
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 6 of 2019 (21743671)
DELIVERED:  17 June 2019
HEARING DATE:  14 June 2019
JUDGMENT OF:  Graham AJ
CATCHWORDS:

CRIMINAL LAW – EVIDENCE LAW – APPEAL – aggravated assault – whether a miscarriage of justice occurred – error in prosecution final address in respect to exculpatory witness evidence – whether judge erred in failing to consider prosecution submission witness was untruthful – whether witness was denied opportunity to re-establish credibility – rule in Browne v Dunn – failure of prosecution to challenge witness – unchallenged evidence – matters not put – inconsistent evidence – unfavourable witness – effect of failure to cross-examine – possible prejudice – possible breach of process – technical breach of Browne v Dunn – no actual miscarriage of justice found – appeal dismissed.

Criminal Code Act1983 (NT) ss 181(1), ss 181(2)
Evidence (National Uniform Legislation) Act (NT), ss 38
Local Court (Criminal Procedure) Act1928 (NT) ss 177(2)(f)

Browne v Dunn [1894] 6 R 6; Kanaan v R [2006] NSWCCA 109, referred to.
REPRESENTATION:
Counsel:
Appellant:J Razi
Respondent: R Everitt

Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Grah1903
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Friel v Rigby [2019] NTSC 48

LCA 6 of 2019 (21743671)
BETWEEN:

JOSEPH FRIEL

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: GRAHAM AJ
REASONS FOR JUDGMENT
(Delivered 17 June 2019)
Introduction
[1]On 13 March 2019, the appellant, Joseph Friel was convicted of aggravated assault of Marissa Sachs on 16 July 2017, contrary to
s 188(1) and (2) of the Criminal Code.
[2]The matter proceeded by way of a contested hearing in the Darwin Local Court, before her Honour Judge Morris.
[3]This is a defence appeal on the grounds that a miscarriage of justice was caused by the prosecutor’s final address in respect to the evidence of Ms Tarissa Pitts [Pitts]. The defence also appeal on the grounds that the judge erred at law by failing to direct herself to ignore the prosecutor’s submission that Pitts’ evidence was untruthful; and/or that Pitts had been denied the opportunity to show her mettle under cross-examination and that the defence had been denied the opportunity to ask her questions in cross-examination designed to support her credibility.
Reasons for decision
[4]There were three witnesses called by the Crown, but it is the evidence of Pitts that is at the heart of this appeal. She gave evidence at the Local Court that it was she who assaulted the victim and not the appellant. The defence called no evidence.
[5]Pitts gave evidence that was exculpatory for the appellant. The prosecutor, notwithstanding that he failed to challenge Pitts when she gave evidence, submitted in his final address that the court should not…

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 Friel v Rigby

Details

AGLC: Friel v Rigby [2019] NTSC 48
Case: [2019] NTSC 48
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the case of Friel v Rigby, the respondent, who was convicted of aggravated assault, appealed against his conviction, arguing that a miscarriage of justice had occurred due to errors made during the prosecution's final address. The appeal was heard in the High Court of Australia. The appellant contended that the trial judge had erred by not considering the prosecution's submission that the key witness was untruthful and that the witness was not given an opportunity to re-establish credibility, contrary to the rule in Browne v Dunn.

The legal issues in the case centred around whether the trial judge's failure to challenge the witness, who provided unchallenged exculpatory evidence, constituted a breach of process that led to a possible miscarriage of justice. The court examined whether the prosecution's failure to cross-examine the witness and the unchallenged evidence contributed to a possible prejudice. The appellant argued that the trial judge should have considered the prosecution's submission and allowed the witness an opportunity to address the allegations against their credibility.

The High Court found that while there was a technical breach of the rule in Browne v Dunn, no actual miscarriage of justice was established. The court acknowledged that the failure to challenge the witness and the unchallenged evidence could have caused some prejudice, but this did not rise to the level of a miscarriage of justice. The appeal was ultimately dismissed as the court concluded that the errors did not impact the overall fairness of the trial or the reliability of the verdict.

Orders