King v The Queen
[1991] TASSC 119
•26 February 1991
Serial No B5/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: King v R [1991] TASSC 119; B5/1991
PARTIES: KING, Robert Geoffrey
v
R
FILE NO/S: C320/1988
DELIVERED ON: 26 February 1991
JUDGMENT OF: Green CJ
Judgment Number: B5/1991
Number of paragraphs: 12
Serial No B5/1991
List "B"
File No C320/1988
ROBERT GEOFFREY KING v THE QUEEN
REASONS FOR JUDGMENT GREEN CJ
26 February 1991
The applicant was tried jointly with Elwin Thomas Pidgeon and Glen Weston upon an indictment containing three counts of killing an animal with intent to steal contrary to s237 of the Criminal Code, three counts of unlawfully wounding cattle contrary to s274 of the Criminal Code and one count of stealing the hindquarters of a cow. At the conclusion of the case for the Crown I upheld submissions that the accused persons had no case to answer in respect of the first six counts and the jury, by direction, acquitted all three accused upon those counts. The jury was discharged in respect of the charge of stealing and upon that count all three accused persons were remanded to appear at the next sittings for trial. The Crown applied for leave to appeal against the verdicts of acquittal in respect of the counts of killing an animal with intent to steal but the application was not proceeded with and was eventually dismissed. The applicant now applies for an order for costs pursuant to the Costs in Criminal Cases Act 1976.
The case against the accused was largely circumstantial. The owner of the cattle gave evidence that on the night on which it was alleged the crimes were committed he had heard shotgun shots and subsequently found the cattle the subject of the charges dead or injured. On the same night he also saw in the vicinity, and twice conversed with, the accused Weston. Constable Kearney said that later that night he intercepted Weston's car some kilometres distant from the complainant's property and saw that the occupants were the three accused and another man named Taylor. Weston said to Constable Kearney that he and the others had been shooting rabbits and made a reference to speaking to a farmer whom the jury could have concluded was the complainant. No evidence of admissions implicating the accused was given. Ballistic evidence was given which was capable of supporting findings that a bullet which killed one of the cows was fired by a rifle found in Weston's car and that shots which killed or injured the other cattle may have been fired by a shotgun and another rifle found in the car. Other evidence was capable of supporting findings that the accused and Taylor had been in contact with the stomach contents of a slaughtered cow that evening.
For the purposes of the submission of no case to answer I held that the Crown case relied very substantially upon circumstantial evidence but that there was no fundamental difference between the way in which a trial judge should determine a submission of no case to answer in such a case and the way in which he should do so in a case in which the Crown relied upon direct evidence.
I reached the following conclusions in relation to the three counts of killing an animal:
"... I hold that even if the evidence can be regarded as sufficient to establish that one of the accused persons, or Taylor, killed the cows the subject of these counts with the requisite intent, the evidence is not capable of supporting a finding that any particular accused person did so.
I turn to consider, in respect of each count, whether assuming that it would be open to the jury to find that one of the accused, or Taylor, committed the crime charged, any of the accused have a case to answer on the basis that they aided or abetted the commission of that crime.
Even if one were to accept the primary evidence at its strongest and draw all inferences which are most favourable to the Crown, I have a real doubt as to whether the evidence is capable of supporting a finding that all three accused were present before, or at the time, when the cows, the subject of these counts, were killed. But even if it were open to the jury to draw that inference in respect of all or any of the accused, I am not satisfied that the evidence is capable of supporting a finding that any of the accused were parties to that killing. The mere conclusion that an accused person was present when the cow, the subject of any particular in the indictment, was killed is not by itself sufficient to justify a conclusion that he aided or abetted the commission of that crime. There would, in addition, have to be some evidence, even if it were only slight evidence, of the circumstances before the fact of an accused's presence at the time of the killing could give rise to an inference that he aided or abetted the commission of the crime. But in this case there is no such evidence. I hold that there is no evidence which is capable of supporting a finding that any of the accused did, or said, anything with the intention of aiding or encouraging the principal offender to commit the crimes charged in these counts, and I hold that there is no evidence which is capable of supporting a finding that the presence or conduct of the accused in fact aided or encouraged the principal offender to commit the crime charged in each of these counts."
I reached the following conclusions in respect of the three counts of wounding an animal:
"... I hold that the evidence, viewed at its strongest from the Crown's point of view, is not capable of supporting a finding that any accused person wounded these cows, or was present when they were wounded, or that any accused person aided or encouraged whoever did wound the cows."
I then proceeded to deal with the submission of no case to answer in respect of the count of stealing. In essence I held that the accused had a case to answer because there was evidence from which the jury could conclude that the hindquarters of a cow were carried in the car in which the accused were travelling, that the accused came in contact with the carcase and that the accused were at some stage involved in carrying or cutting the carcase.
For the purposes of this application I adhere to the conclusions I expressed at the trial as to the effect of the evidence and what findings it was capable of supporting.
I am not satisfied that the order sought by the applicant should be made upon the basis of any findings adverse to the respondent in respect of the matters referred to in s4(2)(a) to (d) of the Costs in Criminal Cases Act 1976. Without expressing any view as to the scope of the phrase, "established ... that he was not guilty", appearing in s4(2)(e), I am satisfied that the applicant has not brought himself within that paragraph as he did not call any witnesses and I am not satisfied that the applicant established that he was not guilty either by the cross–examination of witnesses or by anything else which he did. However the list of relevant circumstances and issues appearing in s4(2) is not exhaustive and as Cox J observed in R v Bishop & Lade B77/1990, "the fact that a prosecution is based on material which cannot establish a case to answer is ... a relevant factor to be considered". In this case the respondent properly conceded that the case presented at the trial was not essentially different from the case upon which the accused were committed and the case which was contained in the Crown papers. It follows from the terms of my ruling that the Crown had no case against the applicant from the beginning of the trial. This was not a case in which the deficiencies in the Crown case only became apparent as the trial progressed or in which witnesses failed to give the evidence they were expected to give. Nor was it a case in which the ruling that there was no case to answer depended upon the determination of some novel or difficult question of law. The case against the applicant was incapable of sustaining a conviction from its inception and in the circumstances I am satisfied that I should grant the application.
I should record that I have not exercised my discretion unmindful of the decision of the High Court in Latoudis v Casey which has not yet been reported but in which reasons were published on 20 December 1990 ((1990) 170 CLR 534). However in my view nothing said in that case relates to any of the matters to which I have been required to have regard in the exercise of my discretion in the circumstances of this particular case. I express no view about the applicability of that case to the Costs in Criminal Cases Act 1976 generally.
I turn to consider whether the fact that the applicant was held to have a case to answer upon the count of stealing should affect the order I make. After ruling that the applicant had no case to answer I discharged the jury in respect of the count of stealing on the grounds that some of the evidence which the jury had heard related only to the other counts and would not have been admissible upon that count and that therefore the interests of justice required that a fresh trial of the remaining count be had before a different jury. However in my view most of the evidence relating to the count of stealing would have been admissible as part of the circumstantial evidence relevant to the other counts and I am not satisfied that the inclusion of the count of stealing materially increased the length of the trial or the work involved in the preparation of the defence. I am thus not persuaded that I should attempt to apportion the costs between the count of stealing the other counts.
I order that the applicant be paid the whole of the costs reasonably incurred by him in respect of his defence of these proceedings. I direct that the registrar of the Supreme Court tax the applicant's costs in accordance with Table A of Appendix M of the Rules of the Supreme Court.
The applicant also made an application pursuant to s15 of the Appeal Costs Fund Act 1968 in respect of the count of stealing. In the circumstances I think that it is appropriate to order that that application be adjourned sine die. If either party wishes to have the application determined I shall do so.
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