Criminal law - convictions for armed robbery and assault - identification of accused - accused interviewed by police - failure of accused to respond to questions except to deny participating in crime - reliance by accused on alibi - Crown case that alibi false - comments by trial judge on failure of accused to give explanation of whereabouts at time offences alleged to have been committed - comments by trial judge on view jury might take of accused's case if alibi disbelieved. Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, ss. 61, 97.

Accused pleaded guilty to two charges of armed robbery committed on 11 April and 8 May 1985 - sentenced to ten years' imprisonment in respect of each charge - sentence imposed for second offence to commence at expiration of sentence imposed for first offence - challenge to total period of imprisonment imposed for the two offences.

Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, s. 97.

Sentence imposed for offences alleged to have been committed on 22 October 1984 to commence at expiration of sentence imposed for offence committed on 8 May 1985 - whether power in Supreme Court to order second cumulative sentence.

Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, ss. 444, 447.

Crimes Act, 1914 (Cth), s. 19.

Statute Law Revision Act, 1950 (Cth), s. 3 and First Schedule.

Court of Petty Sessions Ordinance, 1930, (A.C.T.), s. 90A.

Interpretation Ordinance, 1937, (A.C.T.).

Interpretation Ordinance, 1967, (A.C.T.), s. 33G.

HEARING

CANBERRA

#DATE 11:9:1986

ORDER

The appeals in matters No. A.C.T. G63 and G65 of 1985 be dismissed.

The appeal in matter No. A.C.T. G64 of 1985 be allowed.

The convictions of and sentences imposed upon the appellant in respect of charges of armed robbery and assault alleged to have been committed on 22 October 1984 be set aside.

There be a new trial of the appellant on those charges.

NOTE: Settlement and entry of orders is provided for in Order 36 of the Federal Court Rules.

JUDGE1

Three appeals are to be dealt with. Each is from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) given on 23 August 1985. The first (No. A.C.T. G63 of 1985) is an appeal from so much of the judgment of the Court as imposed a sentence of 10 years' imprisonment for an offence under s. 97 of the Crimes Act, 1900, (N.S.W.) ("the Crimes Act") in its application to the Australian Capital Territory. The offence was committed on 11 April 1985. Section 97 of the Crimes Act provides that, whosoever, being armed with an offensive weapon or instrument, or, being in company with another person, robs, or assaults with intent to rob, any…

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 King, B.C. v The Queen

Details

AGLC: King, B.C. v. The Queen [1986] FCA 386
Case: [1986] FCA 386
Decision Date: 11 SEPTEMBER 1986

CaseChat Overview and Summary

In the case of King, B.C. v The Queen, the appellant, B.C. King, was convicted of armed robbery and assault, and the matter was brought before the court on appeal. The dispute centered on the validity of the appellant's convictions, particularly in light of the identification process and the comments made by the trial judge regarding the appellant's failure to provide an explanation for his whereabouts during the time the offences were committed.

The legal issues that the court had to address included whether the trial judge's comments on the appellant's silence and his alibi amounted to an error that could have influenced the jury's verdict. The court was also required to consider whether these comments breached the principles of fairness and whether they had a prejudicial effect on the outcome of the trial.

The court determined that the trial judge's remarks did indeed constitute an error, as they effectively directed the jury to view the appellant's case negatively if his alibi was disbelieved. Such comments could have unfairly influenced the jury and compromised the appellant's right to a fair trial. Consequently, the court concluded that these errors warranted the setting aside of the appellant's convictions and the ordering of a new trial.

The orders of the court were to dismiss the appeals in matters No. A.C.T. G63 and G65 of 1985, allow the appeal in matter No. A.C.T. G64 of 1985, set aside the convictions and sentences imposed on the appellant for the charges of armed robbery and assault, and order a new trial on those charges.

Orders

Orders of the court

The appeals in matters No. A.C.T. G63 and G65 of 1985 be dismissed.

The appeal in matter No. A.C.T. G64 of 1985 be allowed.

The convictions of and sentences imposed upon the appellant in respect of charges of armed robbery and assault alleged to have been committed on 22 October 1984 be set aside.

There be a new trial of the appellant on those charges.

NOTE: Settlement and entry of orders is provided for in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

King, B.C. v. The Queen [1986] FCA 386

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 32 of 32 shown

R v Turnbull
[2020] NSWSC 1785

…The proper approach by a jury, once it is satisfied beyond reasonable doubt that a proffered alibi is false, was stated by Lord Widgery C.J., speaking for the Court of Appeal, in Reg. v. Turnbull (1977) 1 QB 224 as follows (p 230):-…
Russell v Lee
[2018] WASC 404

…"The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that…
R v Knight
[2016] SASCFC 40

…These remarks were adopted by the South Australian Full Court in R. v. Knight (1981) 26 SASR 573 at pp 574-5, and by the Full Court of the Federal Court in Achetraritei v. R. (1984) 53 ALR 85. The Full Court of the Federal Court said (at p. 90) that that passage serves to emphasise that armed robbery with its attenda…
R v Broadhurst
[2008] NZCA 454

…We think that there is a more fundamental problem arising from what his Honour said than is contemplated by counsel's submission. There are a number of dicta in which judges have emphasized the need for the trial judge to warn the jury about the way in which they may use the fact that an accused per…
R v Spiero
[2001] SASC 19

…King C.J. in R. v. Spiero (1979) 22 SASR 543 at pp 548-9 said:-…
Duff v The Queen
[1999] HCATrans 167

…one and that any misdirection of the kind relied on by counsel for the appellant would have made no difference to the outcome; see Duff v. The Queen (1979) 28 ALR 663 especially at pp. 674-5.…
Campbell v The Queen
[1997] HCATrans 47

…Reliance was also placed on the following passage in the judgment of Fox J. in Campbell v. The Queen (1985) 4 FCR 137 at p. 138:-…
R v Dominguez
[1993] QCA 450

…submitted that support for the above submission was to be found in a passage in the judgment of a Full Court of this Court in Dominquez v. The Queen (1985) 63 ALR 181. In that case the appellant had been convicted of three offences against s. 4 of the Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.). The sentence…
Murrell v The Queen
[1985] FCA 14

…Neither of the sentences could possibly be regarded as excessive if they be looked at individually. The only question is whether, viewed in a global sense, the total period of imprisonment imposed was excessive. As Blackburn J. noted in Murrell v. The Queen (1985) 4 FCR 168 at p 180:-…
Chamberlain v The Queen (No 2)
[1984] HCA 7

…Some parts of the decision in Duff's case were the subject of disapproval in Chamberlain v. The Queen (1984) 51 ALR 225; see pp. 229-234. But nothing said by the High Court in the Chamberlain case affects the statement of principle which is in question here.…
Alexander v the Queen
[1981] HCA 17

…suggested that it was not permissible for the Smiths to identify the appellant from photographs rather than at a line-up; cf. Alexander v. The Queen (1981) 145 CLR 395 But the fact that there was not a line-up after the appellant's arrest tends to weaken the effect of the Smiths' evidence. Furthermore, there is the…
Steinberg v Federal Commissioner of Taxation
[1975] HCA 63

…the consideration of the problem, there is to be taken into account a dictum of Gibbs J. (as he was) in Steinberg v. Federal Commissioner of Taxation (1975) 134 CLR 640 where his Honour said (p. 694):-…
Hayes v The Queen
[1967] HCA 29

…t a person may receive only one cumulative sentence and not more: R. v. Martin (1911) 2 KB 450; R. v. Lovell (1939) 56 WN (NSW) 75; Haves v The Queen (1967) 116 CLR 459; R. v. Clark (1974) 23 FLR 324; Murrell v. The Queen (1985) 4 FCR 168 Adopting that construction of the section, it may not be relied upon to support…
Woon v The Queen
[1964] HCA 23

…In Australia the commencing point for an analysis of the more recent authorities is the dictum of Kitto J. in Woon v. The Queen (1964) 109 CLR 529 Woon's case was not itself a case dealing with the problem in question here, but in the course of his judgment Kitto J. said (p. 535):-…
Tripodi v the Queen
[1961] HCA 22

…sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 CLR 154, at p 158; Tripodi v. The Queen (1961) 104 CLR 1 Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the e…
Maxwell v Murphy
[1957] HCA 7

…ation, but, being essentially one as to the powers of the Supreme Court, we think that, consistently with the principles decided in Maxwell v. Murphy (1957) 96 CLR 261, that question must be resolved by reference to the relevant legislative provisions applicable to the particular circumstances of the case at the tim…
Mraz v The Queen
[1955] HCA 59

…o have influenced the result, the conviction must be quashed. In this connection, the well-known passage in the judgment of Fullagar J. in Mraz v. R. (1955) 93 CLR 493; (1955) ALR 929, refers to the burden which the Crown bears on appeal. Although the court was there construing the common form statutory proviso, his…
Eade v The King
[1924] HCA 9

…on that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 CLR 154, at p 158; Tripodi v. The Queen (1961) 104 CLR 1 Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that o…
Scott Fell v Lloyd
[1911] HCA 34

…"The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evid…
Jack v Smail
[1905] HCA 25

…"The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that…
(1964) AC 441
(1964) AC 441

…y in which they may use the fact that an accused person has told a lie in his evidence or in a statement made by him. Thus in Broadhurst v. The Queen (1964) AC 441, a decision of the Privy Council, Lord Devlin, in giving the reasons of the Board for allowing the appeal, said (p. 457):-…
Reg v Smith
(1959) 2 QB 35

…te for the offences considered together; Thomas (op. cit.) describes this as the totality principle, and it is also applied in Australia: R. v. Smith (1983) 32 SASR 219"…
(1933) 1 KB 685
(1933) 1 KB 685

…"The obvious fairness of treating the words of the caution as meaning what they say (R. v. Navlor (1933) 1 KB 685), and the peril otherwise to the innocent (R. v. Leckey (1944) 1 KB 80), make it essential to guard jealously against infringement of the rule which forbids the treatment of non-disclosure as a ground…
Lord Wilberforce in Rank Film Ltd v Video Information Centre
(1982) AC 380

…number of authorities. We may begin with the general statement made by Lord Wilberforce in Rank Film Distributors Limited v. Video Information Centre (1982) AC 380 in which his Lordship said (p 442) that the privilege against self-incrimination "has been too long established in our law as a basic liberty of the…
(1911) 2 KB 450
(1911) 2 KB 450

…That section has, however, been construed as having the effect that a person may receive only one cumulative sentence and not more: R. v. Martin (1911) 2 KB 450; R. v. Lovell (1939) 56 WN (NSW) 75; Haves v The Queen (1967) 116 CLR 459; R. v. Clark (1974) 23 FLR 324; Murrell v. The Queen (1985) 4 FCR 168 Adopting t…
(1977) 1 QB 224
(1977) 1 QB 224

…sfied beyond reasonable doubt that a proffered alibi is false, was stated by Lord Widgery C.J., speaking for the Court of Appeal, in Reg. v. Turnbull (1977) 1 QB 224 as follows (p 230):-…
(1944) 1 KB 80
(1944) 1 KB 80

…s of treating the words of the caution as meaning what they say (R. v. Navlor (1933) 1 KB 685), and the peril otherwise to the innocent (R. v. Leckey (1944) 1 KB 80), make it essential to guard jealously against infringement of the rule which forbids the treatment of non-disclosure as a ground for inferring guilt…
(1929) 2 KB 1
(1929) 2 KB 1

…s is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject…
Malzy v Eichholz
(1916) 2 KB 308

…witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 CLR 684, at p. 698; Malzy v. Eichholtz (1916) 2 KB 308, at p 321; Ex parte Bear; re Jones (1945) 46 SR (N.S.W.) 126, at p. 128), but although this is no doubt true in many cases it is not correct as a uni…
Hobbs v Tinling
(1929) 2 KB1

…"The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that…
(1966) 1 WLR 762
(1966) 1 WLR 762

…trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker C.J. said in Hoare (1966) 50 Cr App R 166, 169; (1966) 1 WLR 762, 765, not possible to reconcile all of them. It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Cri…
JA giving the judgment of the Court of Appeal in R v Bradley
(1979) 2 NZLR 262

…f the three offences in the light of the ultimate aggregate which will result. Cooke J.A. giving the judgment of the Court of Appeal in R. v. Bradley (1979) 2 NZLR 262, referred (at p 263) to the:…

Legislation cited in this decision · 8

Court of Petty Sessions Ordinance 1930 (repealed) (ACT)
1 mention
Crimes Act 1914 (Cth)
1 mention
Crimes Act 1960 (Cth)
18 1 mention
Crimes Amendment Act 1982 (Cth)
1 mention
Interpretation Ordinance 1937 (repealed) (ACT)
1 mention
Interpretation Ordinance 1967 (ACT)
1 mention
Poisons and Narcotic Drugs Ordinance 1978 (ACT)
1 mention
Statute Law Revision Act 1950 (Cth)
1 mention