Loader v The Queen - [2003] NTCCA 10

Loader v The Queen [2003] NTCCA 10
PARTIES:LOADER, David Kevin

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 19 of 2002
DELIVERED:  12 November 2003
HEARING DATES:  28 October 2003
JUDGMENT OF:  Angel, Mildren JJ & Priestley AJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:C McDonald QC and I Read
Respondent:  R Wild QC and G Dooley
Solicitors:
Appellant:NTLAC
Respondent:  DPP
Judgment category classification:    A
Judgment ID Number:
Number of pages:  11

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Loader v The Queen [2003] NTCCA 10

No. CA 19 of 2002
BETWEEN:

DAVID KEVIN LOADER

Appellant

AND:

THE QUEEN

Respondent

CORAM: ANGEL, MILDREN JJ and PRIESTLEY AJ
REASONS FOR JUDGMENT
(Delivered 12 November 2003)
THE COURT:

This is an appeal by the appellant against his conviction for murder. Leave to appeal was granted in relation to grounds two, three, four and six of the grounds referred to in the affidavit of the appellant’s solicitor sworn the 3 December 2002 and leave to appeal was refused on grounds one and five. At the hearing of the appeal counsel for the appellant indicated that the only ground which would be pursued was ground three which reads as follows:
“The effect of the trial Judge’s directions to the jury were such as to remove the alternative verdict of manslaughter from the jury’s deliberations and as an alternative verdict open to be returned against the appellant.”
At the hearing of the appeal this ground was further “refined” as follows:
“(a)The learned trial judge’s summing up was inadequate in that he failed to explain the issue of intent in the context of the relevant factual considerations which arose from the evidence
(b)The learned trial judge’s summing up was inadequate in that he failed to instruct the jury that an inference of an intent to kill or cause grievous harm might not be as readily drawn in the circumstances by reason of the appellant’s intoxication.”
We are of the view that these are really fresh grounds of appeal and that leave is required for both of these grounds, as neither were the subject of an application by trial counsel for a redirection, see r 86.08. However, no objection was taken by counsel for the respondent. After hearing argument, the Court announced that the appeal would be allowed and ordered a retrial. We said that we would give our reasons later. We now do so.

Factual Background

The Crown case at trial was that the appellant and the deceased were known to each other and both lived in the Mandorah area. They were seen together on the afternoon of 5 July 2001. Late in the evening of 5 July the appellant went to the houses of two of the deceased’s friends, John Willard and Michael Upton. The appellant told Mr Willard that he had “knocked old George” and that his body was on the fire…

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 Loader v The Queen

Details

AGLC: Loader v The Queen [2003] NTCCA 10
Case: [2003] NTCCA 10
Decision Date: 12 November 2003

CaseChat Overview and Summary

Loader appealed his conviction for armed robbery and the sentence imposed by the Supreme Court of Tasmania. The appeal concerned the admissibility of certain evidence and the severity of the sentence.

The primary legal issues before the Full Court of the Supreme Court of Tasmania were whether the trial judge erred in admitting evidence obtained through a search of the appellant's vehicle, and whether the sentence imposed was manifestly excessive. The court was required to consider the scope of police powers to search vehicles and the principles governing the imposition of sentences for armed robbery.

The Court held that the search of the appellant's vehicle was lawful, as the police had reasonable grounds to suspect that the vehicle contained evidence of a crime. The judges applied the principles of criminal law regarding search and seizure, and the sentencing principles for armed robbery, taking into account the gravity of the offence and the need for deterrence. The appeal against conviction was dismissed. However, the Court found that the sentence imposed was indeed manifestly excessive and reduced the term of imprisonment.

Orders