Moseley v The Queen - [2012] NTCCA 11

Moseley v The Queen [2012] NTCCA 11
PARTIES: MOSELEY, Neil Adam

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 20 of 2011
DELIVERED:   6 June 2012
HEARING DATES:   5 & 6 June 2012
JUDGMENT OF:   MILDREN ACJ, SOUTHWOOD AND KELLY JJ
APPEAL FROM:   MARTIN J
CATCHWORDS:

CRIMINAL LAW – Appeal and New Trial – new evidence and fresh evidence – whether of sufficient cogency to establish innocence – whether of a sufficient quality to raise a significant possibility that a jury acting reasonably could have acquitted the accused
EVIDENCE – fresh evidence on appeal – what amounts to be discussed
R v Abou-Chabake (2004) 149 A Crim R 417; applied
Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; Ratten v The Queen (1974) 131 CLR 510; followed
REPRESENTATION:
Counsel:
Appellant:   S J Odgers SC
Respondent:   P Usher
Solicitors:
Appellant:   Ward Keller Lawyers
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:   18

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Moseley v The Queen [2012] NTCCA 11

No. CA 20 of 2011
BETWEEN:

NEIL ADAM MOSELEY

Appellant

AND:

THE QUEEN

Respondent

CORAM: MILDREN ACJ, SOUTHWOOD AND KELLY JJ
REASONS FOR JUDGMENT
(Delivered 6 June 2012)

This is an appeal against conviction and sentence, leave to appeal to the Court of Criminal Appeal having been previously granted.
The appellant, along with another man, Maximillian Tippett, was found guilty after a trial before Martin J and a jury of aggravated robbery committed on 2 March 2011. On 18 August 2011 the appellant was sentenced to a term of imprisonment of nine years commencing on 3 August 2011. A non-parole period of eight years and three months was fixed. Tippett received a sentence of seven years imprisonment commencing from 1 June 2011. The balance of the sentence imposed on 31 July 2009 which was held in suspense was restored to be served concurrently and a minimum non-parole period of three and a half years was fixed.
The sole ground of appeal against conviction is that a miscarriage of justice has resulted from the absence at the trial of fresh evidence.
The evidence at the trial
At the trial there was no dispute that two men committed an aggravated armed robbery at a Kentucky Fried Chicken (KFC) shop in Coconut Grove soon after 10.30 pm on 2 March 2011. The issue in respect of the appellant was whether the prosecution could prove beyond reasonable doubt that he was one of the two robbers. There was no identification evidence in respect of the appellant or Tippett as both robbers were masked, but the prosecution relied upon circumstantial evidence and alleged admissions made to a man named Frank Holden, a friend of the appellant and of Tippett. The appellant testified, denying that he was…

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 Moseley v The Queen

Details

AGLC: Moseley v The Queen [2012] NTCCA 11
Case: [2012] NTCCA 11
Decision Date: 06/06/2012

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated armed robbery. The appellant, Moseley, was convicted on the basis of circumstantial evidence and alleged admissions, as both robbers were masked during the commission of the offence. The prosecution's case relied on the appellant's rental of a red Commodore sedan, which was identified as the getaway car, and the fact that this car was later found near the home of a co-accused, Tippett. The appellant maintained his innocence, claiming he was at a friend's house at the time of the robbery. The appeal was brought before the Supreme Court of the Northern Territory, constituted by Mildren ACJ, Southwood and Kelly JJ.

The central issue on appeal was whether a miscarriage of justice had occurred due to the absence of fresh evidence at the trial. Specifically, the court had to determine if the fresh evidence was of sufficient cogency to establish the appellant's innocence or, alternatively, if it was of a quality that raised a significant possibility that a jury, properly instructed, could have acquitted the appellant. The court was required to consider what constitutes "fresh evidence" in the context of an appeal against conviction.

The court acknowledged that the appeal was based on the contention that new evidence, not available at the trial, demonstrated a miscarriage of justice. The evidence presented at trial established that two masked men committed an aggravated armed robbery at a KFC. The prosecution's case against the appellant rested on circumstantial evidence, including his rental of a red Commodore sedan, which was identified as the getaway vehicle, and the subsequent discovery of that car near the home of a co-accused. The appellant had testified that he was elsewhere at the time of the robbery. The court's task was to assess whether the newly presented evidence met the threshold for admission on appeal and, if so, whether it would have likely altered the outcome of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sole ground of appeal against conviction is that a miscarriage of justice has resulted from the absence at the trial of fresh evidence.The evidence at the trial At the trial there was no dispute that two men committed an aggravated armed robbery at a Kentucky Fried Chicken (KFC) shop in Coconut Grove soon after 10.30 pm on 2 March 2011. The issue in respect of the appellant was whether the prosecution could prove beyond reasonable doubt that he was one of the two robbers. There was no identification evidence in respect of the appellant or Tippett as both robbers were masked, but the prosecution relied upon circumstantial evidence and alleged admissions made to a man named Frank Holden, a friend of the appellant and of Tippett. The appellant testified, denying that he was one of the robbers and asserting that at the time of the robbery, he was at the home of Holden. The evidence at the trial was that sometime after 10.00 pm when the KFC shop closed, one of the employees, Mr Huang, went outside the back door of the premises to take out the rubbish. At the back of the premises there was a car park where he saw a red Commodore sedan parked. After he went out to the rubbish bin two men approached him with their faces covered. One of them was holding a knife. He was told to go back inside the building through the back door and into the store. He and the other members of the staff were told to sit down on the floor of the kitchen area. One of the workers called William jumped over the counter and ran through the front door. One of the robbers chased him over the counter and slipped over in the process. After that the robbers went into the manager’s office. At the time the manager, Mr Nadeen Mohammed, was on the telephone when a man came in carrying a knife and told him to freeze. He was then asked to give him the money, to open the safe or else he would be stabbed in the stomach. He said he opened the safe and gave the robber the money in a silver metal box which contained the float. The money which was removed included notes and coins which were wrapped in brown coloured paper with the word “Armaguard” printed on it. Mr Mohammed also saw the second robber standing in the kitchen area telling the other staff members to sit down. After the money was handed over the robbers ran towards the back door and left. As soon as that happened Mr Mohammed went outside from the front and he saw the robbers sitting in a car which he identified as a red Commodore and which drove away quickly. It was an agreed fact that the amount stolen in the robbery was $2,900 in cash and coins. At the trial there was no dispute that the appellant had rented a 2010 red Commodore sedan on 26 February 2011 and that he was arrested in that car on 3 March 2011. There was considerable evidence supporting a conclusion that this car was used by the two robbers. There was no dispute at the trial that the red Commodore rented by the appellant was at some time during the night of 2 March 2011 left at a location very near the Tippett family home.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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