Staats v R (1998) 123 NT 16, applied Siganto v The Queen (1998) 105 A Crim R 184, applied R v Ireland (1987) 49 NTR 10, applied R v Jabaltjari (1989) 64 NTR 1, applied R v Mulholland (1991) 1 NTLR 1, referred to.
Whether sentencers to reveal the extent of discount given for a plea of guilty
Criminal Code 1983 (NT), s 187, 188(1)(2)(c), s 188(2)(m), s 213(1)(4)(5) & (6) and s 214(5) Sentencing Act 1995 (NT), s 5(2)(J) and s 50 Justices Act 1928 (NT), s 109(3)(b)
REPRESENTATION:
Counsel:
Appellant:R Coates
Respondent: J Blockland
Solicitors:
Appellant:NTLAC
Respondent: DPP
Judgment category classification: B
Judgment ID Number: mar20007
Number of pages: 16
Mar20007
IN THE COURT CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
Kelly v The Queen [2000] NTCCA 3 No. CA 7 of 1999
BETWEEN:
ERIC ALLAN KELLY
Appellant
AND:
THE QUEEN
Respondent
CORAM: MARTIN CJ, ANGEL & MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)
THE COURT:
Application for leave to appeal against sentence (Criminal Code 1983 (NT), s410(c)). At the commencement of the hearing the Court indicated it would hear the application for leave and the submissions on the grounds of appeal together.
On 10 September last the applicant pleaded guilty before the Supreme Court for that:
“Count 1
On 27 May 1999 at Marrakai near Darwin in the Northern Territory of Australia, unlawfully entered a building, namely the dwelling at Lot 5312 McGorrie Road, with intent to commit an offence therein.
AND THAT the said unlawful entry involved the following circumstances of aggravation:
(i)that the said Eric Allan Kelly intended to commit the crime of assault therein,
(ii)that the said building was a dwelling house,
(iii)that the said dwelling house was occupied at the time of entry,
(iv)that at the time of the unlawful entry the said Eric Allan Kelly was armed with a dangerous weapon, namely, an iron pipe.
Section 213(1),(4),(5)&(6) of the Criminal Code.
Count 2
On 27 May 1999 at Marrakai near Darwin in the Northern Territory of Australia, unlawfully assaulted Alan Robert Tudehope,
AND THAT the unlawful assault involved the following circumstances of aggravation:
(i)that the said…
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.
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AGLC
Kelly v The Queen [2000] NTCCA 3
Case
[2000] NTCCA 3
Decision Date
CaseChat Overview and Summary
The appeal concerned the appellant, Kelly, and the respondent, The Queen. The dispute arose from a criminal conviction, and the appeal was heard by the Full Court of the Supreme Court of Western Australia, comprising Martin CJ, Angel and Mildren JJ.
The central legal issue before the Court was whether it was open to an appellate court to interfere with a judge's finding of fact, particularly in circumstances where the facts were uncontroverted. This involved considering the principles governing appeals against findings of fact made by a trial judge.
The Court affirmed the general principle that appellate courts are reluctant to interfere with a trial judge's findings of fact, especially where those findings are based on the assessment of evidence and the credibility of witnesses. However, the Court clarified that this reluctance does not extend to situations where the facts are not in dispute. In such cases, an appellate court is in as good a position as the trial judge to draw inferences and make findings of fact. The Court indicated that if a judge makes an error in applying the law to uncontroverted facts, or draws an illogical inference from those facts, an appellate court is entitled to intervene.
The Court allowed the appeal, finding that the trial judge had erred in their findings of fact based on the uncontroverted evidence presented.