Manufekai v The Queen - [2006] NTCCA 7

Manufekai v The Queen [2006] NTCCA 7
PARTIES:MANUFEKAI

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 11 of 2005 (20320761)
DELIVERED:  24 February 2006
HEARING DATES:  24 February 2006
JUDGMENT OF:  MARTIN (BR) CJ, MILDREN &
THOMAS JJ

CATCHWORDS:

CRIMINAL LAW
Appeal against conviction – hearsay evidence correctly excluded – circumstance of aggravation – s 10 and s 154 of the Criminal Code – Presumption of causation – s 10 inapplicable – finding of guilt of circumstance of aggravation set aside.
REPRESENTATION:
Counsel:
Appellant:S Odgers SC
Respondent:  D Lewis
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    A
Judgment ID Number:  Mar0602
Number of pages:  19

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Manufekai v The Queen [2006] NTCCA 7

No. 11 of 2005 (20320761)
BETWEEN:

MANUFEKAI

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, MILDREN & THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 24 February 2006)
Martin (BR) CJ:
Introduction

The appellant was convicted by a jury of the crime of Dangerous Act contrary to s 154(1) of the Criminal Code. The jury also found the appellant guilty of two circumstances of aggravation, namely, that the appellant thereby caused grievous harm to the victim and that at the time of doing the dangerous act the appellant was under the influence of alcohol. The appellant appealed against the finding of guilt of the first circumstance of aggravation on the ground that the learned trial Judge erred in directions with respect to proof of that circumstance.
Leave having been refused by a single Judge with respect to other grounds, the appellant sought the leave of this Court to appeal against his conviction on grounds that the trial Judge erred in excluding the evidence of an out of court statement by a person who was not called as a witness and that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence.
At the conclusion of the hearing of the appeal, the Court refused leave to appeal on those grounds in respect of which leave had been refused by a single Judge, but allowed the appeal against the finding of guilt of the circumstance of aggravation. Having allowed the appeal against the finding of guilt of the circumstance of aggravation, it was necessary for the Court to address the question of sentence. The Court allowed the appeal against the sentence and re-sentenced the appellant to 30 weeks imprisonment commencing on 24 March 2005. I now set out my reasons for arriving at those decisions.
Trial evidence
The incident in which the victim was injured occurred outside the Walkabout Tavern in Nhulunbuy in the early hours of 28 July 2002. It was the Crown case that the accused and a Mr Tauheluhelu were standing outside the hotel when the victim walked nearby. Without…

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 Manufekai v The Queen

Details

AGLC: Manufekai v The Queen [2006] NTCCA 7
Case: [2006] NTCCA 7
Decision Date: 24 February 2006

CaseChat Overview and Summary

The appeal before the Supreme Court of the Northern Territory was brought by the appellant, Manufekai, against his conviction for an offence involving a circumstance of aggravation. The dispute arose from an incident outside the Walkabout Tavern where the victim sustained a fractured jaw and head injuries. The Crown's case at trial relied heavily on the evidence of a security officer, Mr Sawford, who testified to observing the appellant punch the victim, causing him to fall and strike his head, and subsequently witnessing another individual, Mr Tauheluhelu, stomp on the victim's head.

The legal issues before the Court concerned the admissibility of hearsay evidence, the application of section 10 of the Criminal Code concerning the presumption of causation, and the correctness of the jury's finding of guilt regarding the circumstance of aggravation. The Court was required to determine whether the trial judge erred in excluding certain hearsay evidence and whether the presumption of causation under section 10 of the Criminal Code was applicable to the facts of the case, particularly in light of the victim's own intoxication and the actions of Mr Tauheluhelu.

The Court allowed the appeal against the finding of guilt for the circumstance of aggravation, determining that section 10 of the Criminal Code, which presumes that an act causing injury was intended to cause injury unless the contrary appears, was not applicable in this instance. The Court reasoned that the victim's intoxication and the subsequent actions of Mr Tauheluhelu introduced sufficient doubt to displace the presumption of causation. Consequently, the appeal against the sentence was also allowed, and the appellant was re-sentenced.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the conclusion of the hearing of the appeal, the Court refused leave to appeal on those grounds in respect of which leave had been refused by a single Judge, but allowed the appeal against the finding of guilt of the circumstance of aggravation. Having allowed the appeal against the finding of guilt of the circumstance of aggravation, it was necessary for the Court to address the question of sentence. The Court allowed the appeal against the sentence and re-sentenced the appellant to 30 weeks imprisonment commencing on 24 March 2005. I now set out my reasons for arriving at those decisions.Trial evidence The incident in which the victim was injured occurred outside the Walkabout Tavern in Nhulunbuy in the early hours of 28 July 2002. It was the Crown case that the accused and a Mr Tauheluhelu were standing outside the hotel when the victim walked nearby. Without warning or provocation, the appellant punched the victim in the face causing the victim to fall to the ground and strike his head on the concrete pathway. Mr Tauheluhelu then stomped on the head of the victim. The appellant and Mr Tauheluhelu then left the area. The victim suffered a fractured jaw. He had no memory of being struck. Mr Tauheluhelu was not before the Court. The Crown case centred on the evidence of a Mr Sawford who was a security officer employed at the tavern. The evidence of Mr Sawford was summarised by the Judge in his directions to the jury in the following terms:“But in summary, the principal witness and the most important witness you might think was Mr Sawford. He told you that in July 2002 he was the security guard over there at the Walkabout Tavern. He was on duty that night.He told you of his knowledge of Paki [should be Buckie, a reference to the appellant] and that Paki was there that night. He was familiar with Paki, having seen Paki at least once a week over a period of some six months and possibly a year. Paki arrived at the nightclub with others including Sime [Mr Tauheluhelu].Towards the end of the night he had to remove Paki from the premises because he was intoxicated. He told you how he appeared. He said he was swaying, his eyes were closed for part of the time but when they were open they were bloodshot. His speech was slurred. He told you that Sime helped him take Paki out of the nightclub and they went across the road to the area where the telephones were and still are.Sime came back inside at one point and Paki was still across the road. Later Sime went outside again and they were both across the road, that is Paki and Sime. And Mr Sawford at that stage was outside having a cigarette. He said they were talking to each other. They were both standing up. He told you that the area was well-lit and he told you where the lights were.He then told you that a white male who I think is pretty clear is Mr Sweetman but he could not remember his name at that stage, came out and said to Mr Sawford that he was going home. He was a regular as well at the premises. He had a short discussion, that is Mr Sawford had a short discussion with the man and it was at about 2:15am.The man then walked across the road. He was a little bit intoxicated. He walked towards the phone boxes. He was feeling in his pocket for change or at least he was feeling in his pocket and Mr Sawford assumed for change. And while he was doing that, he was about a metre from Sime and Paki. He started to lift his head and as he did so, he was punched.Mr Sawford was looking from the side view and he could see clearly. He saw Paki as the person who hit him. He used – that is Paki used his right arm and hit him with a jab. It was a good hit. The man fell backwards and hit the ground laying face up. He landed on his back and hit his head on the concrete. He did not try to break his fall so he just went straight back.He said – that is Mr Sawford said that the blow was to the nose and the left side of the face. Mr Sawford then approached, he went over towards what was happening and said to the men: ‘Leave him alone’. Paki and Sime then walked towards the man and Sime lifted his right leg and stomped on the head of the man on the ground. Pretty gruesome stuff.They – that is Sime and Paki then walked off. Mr Sawford followed them to make sure that they had gone. He then inspected the man. He found he was breathing. He said he was snoring. He was completely out of it. There was some dark blood on his face.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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