Gregory Dean Hill v The Queen - [2011] ACTCA 5

GREGORY DEAN HILL v THE QUEEN [2011] ACTCA 5 (22 February 2011)

APPEALS – absence of evidence for element of offence not raised at trial – consideration of appeal point not raised at trial – inappropriate to refuse to consider appeal point relating to fundamental aspect of conviction.

CRIMINAL LAW – conviction appeal – conviction for “receiving” requires proof of all transfers from original thief, including state of mind of all other “receivers” involved – Criminal Code Act 2002 (ACT) ss 313, 314.

CRIMINAL LAW – conviction appeal – “proviso” (no substantial miscarriage of justice) not applicable in absence of evidence for element of offence – prevalence of offence irrelevant in conviction appeal where elements of offence not made out – Supreme Court Act 1934 (ACT), s 37O.

Criminal Code 2002 (ACT), ss 44, 304, 313, 314, 324
Supreme Court Act 1933 (ACT), s 37O

Seivers v The Queen [2010] ACTCA 9

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

No. ACTCA 19-2010
No. SCC 275 of 2008

Judges: Penfold and Marshall JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 22 February 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2010
  )          No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY)
  )
COURT OF APPEAL  )

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

BETWEEN:GREGORY DEAN HILL
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Penfold and Marshall JJ and Nield AJ
Date:  22 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

The conviction recorded against the appellant in respect of the offence of attempt to receive stolen property is set aside and a verdict of not guilty is entered on that charge.

The matter is remitted to the primary judge for re-sentencing of the appellant on the remaining two charges of damage to property and assault occasioning actual bodily harm.

IN THE SUPREME COURT OF THE       )          No. ACTCA 19-2010
  )          No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY)
  )
COURT OF APPEAL  )

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

BETWEEN:GREGORY DEAN HILL
Appellant

AND:THE QUEEN
Respondent

Judges:  Penfold and Marshall JJ and Nield AJ
Date:  22 February 2011
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

The appellant, Mr Hill, was charged with the offence of attempt to receive stolen property in breach of ss 44 and 313(1) of the Criminal Code 2002 (ACT). The primary judge, after a trial before him without a jury, ordered that a verdict of guilty be entered in respect of the charge, and convicted Mr Hill. The primary judge sentenced Mr Hill on the attempt to receive stolen property charge and, at the same time, sentenced him in relation to two other charges to which he had pleaded guilty. Those charges were damage property and assault occasioning actual bodily harm.
On the appeal, Mr Hill challenges the finding of the…

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 Gregory Dean Hill v The Queen

Details

AGLC: Gregory Dean Hill v The Queen [2011] ACTCA 5
Case: [2011] ACTCA 5
Decision Date: 22 February 2011

CaseChat Overview and Summary

The appeal concerned Gregory Dean Hill and the Crown, heard before the Supreme Court of the Australian Capital Territory. The dispute arose from Mr. Hill's conviction for an offence, the specifics of which are not detailed beyond its relation to property damage and assault occasioning actual bodily harm, and the subsequent appeal against that conviction.

The central legal issues before the Court were whether it was appropriate to consider an appeal point concerning a fundamental element of the offence that had not been raised at trial, and whether the proviso under section 37O of the *Supreme Court Act 1934* (ACT) could be applied where there was an absence of evidence for an essential element of the offence. The Court was also required to consider the interpretation of "receiving" under sections 313 and 314 of the *Criminal Code Act 2002* (ACT), particularly in relation to the proof of all transfers and the mental state of all involved parties.

The Court reasoned that it was inappropriate to refuse to consider an appeal point relating to a fundamental aspect of a conviction, even if not raised at trial. It held that the proviso, which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, was not applicable in circumstances where there was a complete absence of evidence for an element of the offence. The Court further clarified that the prevalence of an offence is irrelevant in a conviction appeal where the elements of the offence have not been made out.

Consequently, the Court set aside the sentence or sentences imposed and remitted the offences of damage to property and assault occasioning actual bodily harm to the primary judge for re-sentencing in accordance with the Court's orders.

Orders

Orders of the court

The sentence or sentences are set aside, and the offences of damage to property and assault occasioning actual bodily harm are remitted to his Honour the primary judge for re-sentencing in accordance with the orders of this Court.

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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