MJ v The Queen - [2012] ACTCA 53

MJ v THE QUEEN
[2012] ACTCA 53 (17 December 2012)

APPEAL AND NEW TRIAL – Appeal against conviction – Evidence of “illegal search” – No search – No illegality – Appeal ground dismissed.
APPEAL AND NEW TRIAL – Appeal against conviction – Whether trial miscarried – Failure to discharge jury after evidence adduced – Crown witness deliberately raised prejudicial character evidence – Police witness – Circumstantial case – Crofts v The Queen –Evidence to be considered in context – Appeal ground upheld.
APPEAL AND NEW TRIAL – Appeal against conviction – Trial miscarried – Davies v The King – No basis for recording an acquittal – Conviction quashed – New trial ordered.

Evidence Act 2011 (ACT), s 138

Crofts v The Queen (1996) 186 CLR 427
Davies v The King (1937) 57 CLR 170
M v The Queen (1994) 181 CLR 487

R v Clough (1992) 28 NSWLR 396
R v K (2003) 59 NSWLR 431

Tran v The Queen (2000) 105 FCR 182

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 3 - 2012
No. SCC 243 of 2011

Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 17 December 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 3 - 2012
  )          No. SCC 243 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MJ
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Refshauge, Penfold, Burns JJ
Date:  17 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appellant’s conviction on the charge of theft is quashed.

The appellant be retried on the charge of theft.

IN THE SUPREME COURT OF THE       )          No. ACTCA 3 - 2012
  )          No. SCC 243 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MJ
Appellant

AND:THE QUEEN
Respondent

Judges:  Refshauge, Penfold and Burns JJ
Date:  17 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 16 November 2010 a witness saw two young men on a property in Narrabundah. One of them entered the premises on the property. It was subsequently found that a quantity of jewellery had been taken from the premises.

The appellant was charged with aggravated burglary of the premises and theft of the jewellery, to which he pleaded not guilty. During the course of the trial, the trial judge directed a verdict of not guilty be entered on the charge of aggravated burglary. The trial judge declined to direct a verdict of not guilty be entered on the charge of theft.

On 7 February 2012, a jury returned a verdict of guilty on the charge of theft. A conviction was formally recorded on 9 February 2012, when a deferred sentence order was made requiring the appellant to appear before the trial judge for…

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 MJ v The Queen

Details

AGLC: MJ v The Queen [2012] ACTCA 53
Case: [2012] ACTCA 53
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appellant, MJ, appealed against a conviction for theft. The appeal concerned two grounds: first, whether the evidence admitted at trial was obtained through an illegal search, and second, whether the trial miscarried due to the prejudicial character evidence introduced by the Crown. The appeal was heard by the Court of Criminal Appeal.

The Court was required to determine whether the evidence relied upon by the prosecution was unlawfully obtained, thereby necessitating its exclusion. Furthermore, the Court had to consider whether the admission of deliberately elicited prejudicial character evidence by a Crown witness, a police officer, constituted a miscarriage of justice that warranted discharging the jury. If a miscarriage was found, the Court also had to consider whether there was a basis for entering an acquittal or if a new trial was the appropriate remedy.

Applying the principles from *Crofts v The Queen*, the Court found that the evidence in question was not the result of a search, let alone an illegal one, and therefore dismissed the first ground of appeal. However, regarding the second ground, the Court determined that the deliberate introduction of prejudicial character evidence by the police witness, which was not relevant to the circumstantial case, did indeed cause a miscarriage of justice. Citing *Davies v The King*, the Court held that there was no basis to record an acquittal, and consequently, the conviction was quashed and a new trial was ordered.

Orders

Orders of the court

The appellant’s conviction on the charge of theft is quashed.

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

Full text does not contain this section.