Hoar, Donald Edgar v The Queen

Re: DONALD EDGAR HOAR
And: THE QUEEN
No. NTG 5 of 1982
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
Toohey J.
Davies J.

CATCHWORDS

Criminal law - Appeal to set aside a conviction on the grounds of fresh evidence - evidence of perjury of essential crown witnesses - evidence that evidence of guilt at trial was fabricated - absence of evidence refuting such fabrication - miscarriage of justice - fair trial - whether fresh evidence cogent, feasible and relevant - whether fresh evidence if called at trial would have raised reasonable doubt - whether witness so lacking in credibility verdict cannot stand - declaration under s.13(1) of the Fisheries Act (1978) concerning "all waters" - duplicity in indictment.

HEARING

MELBOURNE

#DATE 31:3:1983

ORDER

(i) that the appeals against the conviction and sentence in respect of the charges of assaulting a police officer in the execution of his duty contrary to s.51 of the Criminal Law Consolidation Act and wilful obstruction of a police officer in the due execution of his duty contrary to s.51 of the Criminal Law Consolidation Act be dismissed;

(ii) that the verdict and the conviction of the appellant dated 17 October 1980 and the sentence in respect of the charge of conspiracy against the appellant be set aside;

(iii) that there be a new trial of the appellant upon the indictment for conspiracy to commit an offence against a law of the Territory contrary to s.53(1)(a) of the Criminal Law and Procedure Act; and

(iv) that the appellant be remanded in his present custody to appear before the Supreme Court of the Northern Territory upon his retrial unless in that court, proceedings upon the indictment are otherwise terminated.

JUDGE1

In form this is as an appeal against three convictions suffered by the appellant in the Supreme Court of the Northern Territory on 17 October 1980.

In substance the appeal concerns the conviction of the appellant for conspiracy to commit an offence against a law of the Territory contrary to s.53(1)(a) of the Criminal Law and Procedure Act. The conspiracy alleged was that the appellant along with six other persons between 1 October 1979 and 28 February 1980 at Darwin, Wildboar and other places in the Northern Territory and at Melbourne conspired and agreed to take barramundi during the closed season and to take barramundi upstream from permitted waters.

The other convictions were for assaulting a police officer in the execution of his duty and for wilful obstruction of a police officer in the execution of his duty. In respect of these convictions nothing in the notice of appeal relates to them nor was any argument advanced. Accordingly the matter may be dealt with as if the appeal were confined to the conviction for conspiracy.

On 23 October 1980 the learned trial Judge imposed the following sentences on the appellant:

For the offence of conspiracy - a term of imprisonment for three months, suspended, upon the appellant…