Hillen v The King

Case [2023] NTCCA 9

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 law

Whether 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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AGLC
Hillen v The King [2023] NTCCA 9
Case
[2023] NTCCA 9
Decision Date

CaseChat Overview and Summary

The appeal concerned the applicant, Hillen, and the Crown, before the Court of Appeal of Queensland, constituted by Grant CJ, Barr and Brownhill JJ. The dispute arose from Hillen's conviction for an offence, following a jury verdict. The factual background, not in dispute, involved Hillen and another prisoner, Baxter, using "fishing lines" made from garbage bin liners to connect their cells. Hillen ignited a flammable item attached to his line, which Baxter then pulled into his cell. Baxter used this ignited item to set fire to a pile of materials in his shower recess, causing significant damage and smoke, which triggered fire alarms. Separately, another prisoner, Hyde, also set fire to items in his cell, though the Crown did not allege he acted in concert with Hillen and Baxter.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If leave were to be granted, the determination of the appeal would be governed by the common appeal provisions of s 411 of the Criminal Code, which relevantly provide:(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.The evidence The following matters were not in dispute. On 5 June 2020, the applicant and Baxter were prisoners at the DCC. They were accommodated in cells opposite one another, with a corridor approximately 10 metres wide between the cells. The applicant created a line out of plastic garbage bin liners with something small to act as a weight attached to the end, known in prison slang as a ‘fishing line’. Baxter also created a fishing line. The applicant and Baxter each cast their fishing lines under their cell doors, and the fishing lines connected up, allowing Baxter to drag the applicant’s fishing line into his cell. At about 12.56 am, the applicant used an unknown ignition source to set fire either to the fishing line or to something flammable connected to the fishing line. Baxter hauled the lit fishing line into his cell under the door. This fishing exercise was caught on CCTV. The footage had no sound recording. Baxter used the fire from the applicant’s fishing line to light a pile of materials he had assembled in the shower recess of his cell, including his mattress, bedding, rubbish, felt torn from a pin up board, a TV console or computer monitor and clothing. Those materials caught alight and created a fire inside the shower recess of his cell, charring and damaging the walls and ceiling of the cell. The smoke from the fire set off the fire alarms and a ‘Code Red’ was issued within two minutes after Baxter hauled the lit fishing line into his cell. Two minutes after the alarms went off, Correctional officers entered Baxter’s cell. They put out the fire, which had generated a lot of black smoke into the cell and completely burnt some items in the pile of materials. Baxter and a Correctional officer were subsequently taken to hospital for observation due to smoke inhalation. At about the same time as the fire was burning in Baxter’s cell, Hyde used an ignition source to set fire to flammable items in his cell. Hyde had also lit a fire in his cell earlier that evening. The Crown did not allege that Hyde was acting in concert with the applicant and Baxter. The Crown case was that Hyde made his own decision to light the fire in his cell.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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