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Moffitt v The Queen

Moffitt v The Queen

Case [2020] NSWDC 486 28 August 2020

Appeal

Admissibility of Evidence

Criminal Liability

Fraud

Exclusion of Evidence

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Moffitt v R [2020] NSWDC 486
Hearing dates: 16 July 2020, 30 July 2020, 7 August 2020
Date of orders: 28 August 2020
Decision date: 28 August 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The appeal is upheld the conviction and other order of the Magistrate are set aside.

Catchwords:
APPEALS - District Court - Appeal against conviction in Local Court
APPEALS - Nature of appeal - Appeal by rehearing - Error of law - Admissibility of evidence
CRIME – not paying for petrol – in what circumstances is this by deception dishonestly obtaining property belonging to another
EVIDENCE - Admissions - Criminal proceedings -Improperly obtained evidence - Exclusion of evidence - Requirement for recording admissions in s 281 Criminal Procedure Act 1986 not met - Notice of Demand - does s 14 Law (Enforcement Powers and Responsibilities) Act 2002 Notice of Demand require electronic recording if evidence is to be admitted in Table 1 Criminal Procedure Act 1986 offence proceedings – Whether evidence should be excluded - other discretions considered
EVIDENCE - Identification evidence - Visual identification from CCTV – comparison with appellant in court – necessary cautions

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Criminal Procedure Act 1986
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
under Crimes (Appeal and Review) Act 2001

Cases Cited:
Carr v Western Australia [2007] HCA 47;(2007) 232 CLR 138
Charara v The Queen (2006) 164 A Crim R 39
Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208 A Crim R 146
Director of Public Prosecutions v AG [2015] NSWCA 218
Dyason v Butterworth [2015] NSWCA 52
Edwards v Ddin (1976) Crim App R 218
Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gianoutis v Glykis (2006) 65 NSWLR 539
Kelly v The Queen [2004] HCA 12; (2004) 19 CLR 216
NSW v Robinson [2019] HCA 46
R v Barakat [2016] NSWSC (No 2) 1255
R v Coady (1996) WL 1092390
R v Collis-Smith (1971) Crim L R 717
R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117
R v Reid [1999] NSWCCA 258
R v Schiavani [1999] NSWCCA 165
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

Texts Cited:
Legislative Assembly Hansard, 12 /11/1998 - Police Powers (Vehicles) Bill 1998
Uniform Evidence Law 15th Ed, S Odgers.

Category: Principal judgment
Parties: Chloe Moffitt (Appellant)
Director of Public Prosecutions (Respondent)
Representation: Solicitors:
Mr T McKenzie, Legal Aid NSW
Ms A Bird, Director of Public Prosecutions

File Number(s): 2018/00279840

Judgment

Introduction

December 6^th 2019 was a busy morning at Wollongong Local Court. Among many other matters Magistrate Douglass heard a defended hearing that alleged that on 28 July 2018 Chloe Moffitt had dishonestly…

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 Moffitt v The Queen

Details

AGLC: Moffitt v The Queen [2020] NSWDC 486
Case: [2020] NSWDC 486
Decision Date: 28 August 2020

CaseChat Overview and Summary

In Moffitt v The Queen, the appellant was convicted in the Local Court of an offence of obtaining property by deception under section 195(1) of the Criminal Code Act 1995 (Qld). The conviction related to the appellant's failure to pay for petrol at a service station, which he claimed was due to an error on the part of the service station. The appellant appealed to the District Court against both his conviction and sentence. The grounds of appeal centred on the admissibility of evidence obtained during an interview with the police and the procedure followed in recording the appellant's admissions during that interview.

The central legal issues before the District Court were whether the evidence obtained from the police interview was admissible and, if not, whether the exclusion of this evidence was sufficient to set aside the conviction. The court had to consider whether the recording of the appellant's admissions complied with the requirements of section 281 of the Criminal Procedure Act 1986 (Qld) and whether any failure to comply mandated the exclusion of the evidence under section 138 of the same Act. Additionally, the court needed to address whether the evidence from a CCTV identification was properly before it and whether the necessary cautions were observed in relation to the identification of the appellant.

The District Court held that the recording of the appellant's admissions was not compliant with section 281 of the Criminal Procedure Act 1986 (Qld) because it was not made in the manner prescribed by the Act, and therefore, this evidence should have been excluded. The court also considered the impact of section 14 of the Law (Enforcement Powers and Responsibilities) Act 2002 (Qld), which requires a Notice of Demand to be given before certain evidence is obtained, but did not find that this section mandated electronic recording for admissibility under Table 1 offences. The court found that the exclusion of the improperly obtained evidence was a significant error that affected the safety of the conviction. The court also found that the identification evidence from the CCTV was properly before it, but cautioned that it should be considered with care.

The appeal was upheld, and the conviction and sentence imposed by the Local Court were set aside.

Orders

Orders of the court

The appeal is upheld the conviction and other order of the Magistrate are set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Moffitt v The Queen [2020] NSWDC 486

Most Recent Citation

Regina v Duncombe [2001] NSWCCA 483

Cases citing this decision · 12 of 12 shown

Crane v The King
[2024] NSWCCA 87 Para 2

…small that it did not give practical effect to the finding of special circumstances. Ground (iii) is made out. AM v R [2020] NSWCCA 101; R v Moffitt (1990) 20 NSWLR 114; (1990) 49 A Crim R 20…
Neil v The The Queen
[2022] NSWDC 402 Para 89

…Ms O’Rourke then referred me to a decision of Haesler SC DCJ in Moffitt v R [2020] NSWDC 486 and quoted what his Honour said at [76] of that judgment. Ms O’Rourke said this in her written submissions:…
R v Mongta-Kelly
[2020] NSWDC 602 Para 73

…repealed. In fact, it was once the leading judgment in relation to the character of “special circumstances.” That is the judgment of Moffitt v R (1990) 14 NSWLR 114, particularly at [120]-[121]. The prisoner does need a great deal of professional assistance. But he also needs to reflect upon his own conduct and take…
R v Cannon
[2015] NSWDC 125 Para 79

…In R v Moffitt (1990) 49 A Crim R 20 at 38, Badgery-Parker J noted that prior to the Sentencing Act , non-parole periods were “often as short as 50 percent of the head sentence or even less.”…
R v Borg
[2010] NSWSC 951

…NSWCCA 319 R v George (2004) 149 ACrimR 38 R v Heffernan [2005] NSWSC 739 R v Isaacs (1997) 41 NSWLR 374 R v McGourty [2002] NSWCCA 335 R v Moffitt (1990) 20 NSWLR 114; 49 ACrimR 20 R v Trevenna (2004) 149 ACrimR 505 R v Way (2004) 60 NSWLR 168 Versluys [2008] NSWCCA 76 Whitmore [2010] NSWCCA 157 Yun [2008] NSWCCA 114…
R v Barker
[2009] NSWCCA 225

…There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear…
Mencarious v R
[2008] NSWCCA 237

…y v The Queen (1990) 169 CLR 525; 47 A Crim R 433). 34. There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing t…
Regina v Clifford, Regina v AB
[2005] NSWSC 521

…Crim R 525). General deterrence is one factor amongst many to be considered in setting that required minimum period of incarceration ( R v Moffit (1990) 20 NSWLR 114; 49 A Crim R 20. However, it is generally accepted that in sentencing young offenders considerations of general deterrence are not as significant as in t…
Regina v Van Oosterum
[2004] NSWSC 532

…50 It is common ground that it would be an absurdity were I to find special circumstances such that the parole period should be extended which would require me to sentence the offender to a sentence longer than the offender would receive if special circumstances were not found since those words have…
Regina v Gardiner
[2002] NSWCCA 209

…e the case with young offenders who are facing their first custodial sentence. Those statements are taken from the judgments of this Court in Moffitt (1990) 20 NSWLR 114 at 121, 132, 136; 49 A Crim R 20 at 26-27, 38, 41-42. The necessary consequence of a decision that a longer than usual additional term is necessary o…
Regina v Duncombe
[2001] NSWCCA 483

…51 Considerations as to Crown appeals have been set forth in such decisions as Regina v. Allpass (1994) 72 A. Crim. R. 561; Osenkowski (supra); Everett (supra) and Regina v. Kalache (Lesley) (2000) 111 A. Crim. R. 152, noting the discretion not to uphold such an appeal notwithstanding that error mig…
Regina v Patsalis and Spathis [No 22]
[1999] NSWSC 1320

…(1990) 20 NSWLR 114 at 121, 132, 136; 49 A Crim R 20 at 26-27, 38, 41-42.” 66 Mr Patsalis is facing his first custodial sentence. He could not, in my view, be characterised as a young offender. There are, nonetheless, several matters which may suggest special circumstances. The compulsive nature of Mr Patsalis’ gambl…

View all 12 citing cases →

Cases cited in this decision · 17 of 17 shown

New South Wales v Robinson
[2019] HCA 46 Para 68

…a the police officer believed when the caution was administered that there was sufficient evidence that the appellant be arrested: NSW v Robinson [2019] HCA 46. Even had Part 9 LEPRA applied, given a caution was administered and the Form of Demand procedures were complied with I could not conclude any significan…
Smith v The Queen
[2017] HCA 19 Para 8

…so that if necessary I could, as the tribunal of fact, make my own in court observation and identification: Smith v The Queen [2001] HCA 50; ( 2001) 206 CLR 650.…
Engelbrecht v Director of Public Prosecutions (NSW)
[2016] NSWCA 290 Para 7

…539; Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG [2015] NSWCA 218; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 .…
R v Barakat; R v Younes (No 2)
[2016] NSWSC 1255 Para 63

…of Demand for an investigatory purpose and the Form can be administered on those who are not suspects. An example can be found in R v Barakat (No 2) [2016] NSWSC 1255. There a s14 Form of Demand in written form was admitted as evidence against an accused in a murder trial; importantly at the time the demand was mad…
AG v Director of Public Prosecutions (NSW)
[2015] NSWCA 218 Para 7

…thout the necessity to find error: Gianoutis v Glykis (2006) 65 NSWLR 539; Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG [2015] NSWCA 218; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 .…
Dyason v Butterworth
[2015] NSWCA 52 Para 7

…onary error or whether I should conduct a rehearing without the necessity to find error: Gianoutis v Glykis (2006) 65 NSWLR 539; Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG [2015] NSWCA 218; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 .…
R v Horton
[2010] NSWSC 1007 Para 41

…ities for a police officer to fabricate the making of an admission and for an accused to challenge evidence of the making of an admission: R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117 at [17].…
Director of Public Prosecutions (NSW) v Horwood
[2009] NSWSC 1447 Para 38

…v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 - 438. This construction appears consistent with Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208 A Crim R 146, where Fullerton J held, so far as s11 LEPR Act is concerned that:…
Carr v Western Australia
[2007] HCA 47 Para 1

…power and the negation of consent of an accused person, to place a proviso on the use and admissibility of that information: Carr v Western Australia [2007] HCA 47;(2007) 232 CLR 138 at [74] - [78]. The purpose behind s281 does not require such a finding.…
Gianoutsos v Glykis
[2006] NSWCCA 137 Para 7

…the result of a legal, factual or discretionary error or whether I should conduct a rehearing without the necessity to find error: Gianoutis v Glykis (2006) 65 NSWLR 539; Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG [2015] NSWCA 218; Engelbrecht v Director of Public Prosecutions (NSW) [20…
Bouras v Grandelis
[2004] NSWSC 1117 Para 41

…abricate the making of an admission and for an accused to challenge evidence of the making of an admission: R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117 at [17].…
Kelly v The Queen
[2004] HCA 12 Para 2

…uestion let alone in the course of official questioning and was not made in a situation that required a tape recording be made: Kelly v The Queen [2004] HCA 12; (2004) 19 CLR 216.…
Festa v The Queen
[2001] HCA 72 Para 50

…There is a difference between evidence of a positive identification and circumstantial identification or resemblance or similarity: Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; S Odgers. Uniform Evidence Law 15 th Ed, at [116.120]; “identification evidence;” Dictionary EA . That said, in all the circumst…
Smith v The Queen
[2001] HCA 50 Para 8

…court on 7 August 2020 so that if necessary I could, as the tribunal of fact, make my own in court observation and identification: Smith v The Queen [2001] HCA 50; ( 2001) 206 CLR 650.…
R v Reid
[1999] NSWCCA 258

…1255 R v Coady (1996) WL 1092390 R v Collis-Smith (1971) Crim L R 717 R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117 R v Reid [1999] NSWCCA 258 R v Schiavani [1999] NSWCCA 165 Smith v The Queen [2001] HCA 50; ( 2001) 206 CLR 650 Texts Cited: Legislative Assembly Hansard, 12 /11/1998 - Police Powers (Ve…
R v Schiavini
[1999] NSWCCA 165 Para 47

…ls the requirements for admission set out in the EA must still meet those stringent requirements before it can be admitted in evidence: R v Schiavani [1999] NSWCCA 165 at [16].…
Coco v the Queen
[1994] HCA 15 Para 38

…As with any provision that unambiguously takes away rights s14 LEPRA must be strictly construed and applied: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 - 438. This construction appears consistent with Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208…

Legislation cited in this decision · 5

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
2 mentions (from Para 2)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 28)

Medium Neutral Citation:	Moffitt v R [2020] NSWDC 486
Hearing dates:	16 July 2020, 30 July 2020, 7 August 2020
Date of orders:	28 August 2020
Decision date:	28 August 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The appeal is upheld the conviction and other order of the Magistrate are set aside.
Catchwords:	APPEALS - District Court - Appeal against conviction in Local Court APPEALS - Nature of appeal - Appeal by rehearing - Error of law - Admissibility of evidence CRIME – not paying for petrol – in what circumstances is this by deception dishonestly obtaining property belonging to another EVIDENCE - Admissions - Criminal proceedings -Improperly obtained evidence - Exclusion of evidence - Requirement for recording admissions in s 281 Criminal Procedure Act 1986 not met - Notice of Demand - does s 14 Law (Enforcement Powers and Responsibilities) Act 2002 Notice of Demand require electronic recording if evidence is to be admitted in Table 1 Criminal Procedure Act 1986 offence proceedings – Whether evidence should be excluded - other discretions considered EVIDENCE - Identification evidence - Visual identification from CCTV – comparison with appellant in court – necessary cautions
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Criminal Procedure Act 1986 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 under Crimes (Appeal and Review) Act 2001
Cases Cited:	Carr v Western Australia [2007] HCA 47;(2007) 232 CLR 138 Charara v The Queen (2006) 164 A Crim R 39 Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208 A Crim R 146 Director of Public Prosecutions v AG [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Edwards v Ddin (1976) Crim App R 218 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Gianoutis v Glykis (2006) 65 NSWLR 539 Kelly v The Queen [2004] HCA 12; (2004) 19 CLR 216 NSW v Robinson [2019] HCA 46 R v Barakat [2016] NSWSC (No 2) 1255 R v Coady (1996) WL 1092390 R v Collis-Smith (1971) Crim L R 717 R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117 R v Reid [1999] NSWCCA 258 R v Schiavani [1999] NSWCCA 165 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Texts Cited:	Legislative Assembly Hansard, 12 /11/1998 - Police Powers (Vehicles) Bill 1998 Uniform Evidence Law 15th Ed, S Odgers.
Category:	Principal judgment
Parties:	Chloe Moffitt (Appellant) Director of Public Prosecutions (Respondent)
Representation:	Solicitors: Mr T McKenzie, Legal Aid NSW Ms A Bird, Director of Public Prosecutions
File Number(s):	2018/00279840