CITATION:Hillen v The King [2023] NTCCA 9
PARTIES:HILLEN, Damian Allan Ronald
v
THE KING
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 3 of 2023 (22019536)
DELIVERED: 15 December 2023
HEARING DATE: 30 May 2023
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Wrong decision on a question of law
Admissibility of evidence – Whether agreed facts from co-offender’s sentencing proceedings received in error – Conduct in pleading guilty on agreed facts a previous representation admissible as credibility evidence and as proof of the facts asserted – Draft version of agreed facts adopted by co-offender’s signature – Draft version relevant to: (a) whether plea could not be characterised as a ‘plea of convenience’; and (b) whether admissions by co-offender extended to applicant’s conduct – Document subject to legal professional privilege and potentially inadmissible – Any error in admitting the document did not result in substantial miscarriage of justice –Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Wrong decision on a question of lawWhether miscarriage of justice resulted from the failure of the Crown to identify the alternative pathways to a finding of guilt – Whether defence unaware of case it had to meet before closing address – Alternative pathway identified by the Crown before final addresses – Defence counsel aware of alternative offence and open to recall applicant to give evidence on question – No tactical disadvantage or other prejudice – Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdict unreasonable or unsupported by the evidence – Not reasonably possible that co-offender’s evidence concerning lack of agreement and intention was true – Not satisfied that the jury must have entertained a doubt about the appellant’s guilt – Application for leave to appeal refused.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether admission of evidence of another prisoner two fires in his cell at or about the same time caused miscarriage of justice – Whether evidence had no probative value raised danger of unfair prejudice – Defence counsel did not object to admission of the evidence or seek any direction about it – Risk immaterial – Application for leave to appeal refused.
Criminal Code Act 1983 (NT), s 43AA, s 43AH, s 43AI, s 43AK, s 43BG,s 243, s 410, s 411, s 429
Evidence (National Uniform Legislation) Act 2011 (NT), s 38, s 59, s 60, s 63, s 101A, s 102, s 106, s 119, s 137
Ancutav The Queen (1990) 49 A Crim R 307, Bou-Elias v The Queen (No 1) [2012] VSCA 61, Bruce v Williams (1989) 46 A Crim R 122, Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213…
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- Hillen v The King [2023] NTCCA 9
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- [2023] NTCCA 9
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CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the jury's verdict of guilt against Hillen was unreasonable or unsupported by the evidence, whether there was a wrong decision on a question of law, or whether there had been a miscarriage of justice. The Court was required to consider the provisions of s 411 of the Criminal Code, which govern appeals against a finding of guilt. Specifically, the Court had to determine if the verdict should be set aside on any of these grounds, or if, despite potential points favouring the appellant, no substantial miscarriage of justice had occurred.
The Court's reasoning focused on the application of s 411 of the Criminal Code. The Court noted that it had the power to allow the appeal if the verdict was unreasonable, unsupported by evidence, or if there was a wrong decision on a question of law or a miscarriage of justice. Crucially, the Court also had the discretion to dismiss the appeal even if it found points in favour of the appellant, provided no substantial miscarriage of justice had actually occurred. The Court's analysis would therefore involve a careful examination of the evidence presented at trial in light of these statutory grounds for appeal and the overarching principle of preventing a substantial miscarriage of justice.
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