Muench v McCue - [2020] ACTCA 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Muench v McCue
Citation:	[2020] ACTCA 17
Hearing Date:	6 August 2019
DecisionDate:	17 April 2020
Before:	Burns, Loukas-Karlsson and Wigney JJ
Decision:	See [131]-[132]
Catchwords:	APPEAL – Where accused was convicted of offence of attempting to capture visual data in circumstances of indecency or invasion of privacy – where conduct occurred between two change room cubicles and identity was in issue – where accused appealed the findings of a magistrate and the primary judge that the offence had been proved beyond reasonable doubt – whether there was a miscarriage of justice – whether finding was not unreasonable and not supported by the evidence – whether it was open, on the whole of the evidence, to find beyond reasonable doubt that the accused was guilty of the offence charged – where evidence, considered as a whole, was capable of supporting a finding of guilt beyond reasonable doubt – where evidence, considered as a whole, was capable of excluding any alternative hypothesis – where it was open to the magistrate and the primary judge to find offence had been proved beyond reasonable doubt – where there was no miscarriage of justice – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT) s 61B(1) Magistrates Court Act 1930 (ACT) s 208(1)(b) Supreme Court Act 1933 (ACT) ss 37O(2), 37O(2)(a)(i), 37O(2)(a)(ii), 37O(2)(a)(iii), 37O(3)
Cases Cited:	Barca v The Queen (1975) 133 CLR 82 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v Melrose [1989] 1 Qd R 572 R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 R v Perera [1982] VR 901 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Parties:	Dane Christian Muench (Appellant) James Christopher McCue (Respondent)
Representation:	Counsel K Ginges (Appellant) M Jones (Respondent)
Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 8 of 2019
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 12 February 2019 Case Title: Muench v McCue Citation: [2019] ACTSC 20

THE COURT:

On 2 November 2016, the appellant, Mr Dane Muench was charged with an offence of attempting to capture visual data in circumstances of indecency or invasion of privacy contrary to subs 61B(1) of the Crimes Act 1900 (ACT). It was alleged that on 26 October 2016, Mr Muench attempted to use his mobile phone to film the Complainant while she was trying on clothes in a change room cubicle in a Kmart store in a shopping centre at Tuggeranong in the Australian Capital Territory.

After a three-day hearing in the Magistrates Court of the Australian Capital Territory, which took…

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 Muench v McCue

Details

AGLC: Muench v McCue [2020] ACTCA 17
Case: [2020] ACTCA 17
Decision Date: 17 April 2020

CaseChat Overview and Summary

The appeal concerned a conviction for the offence of attempting to capture visual data in circumstances of indecency or invasion of privacy. The conduct in question occurred between two change room cubicles, and the identity of the perpetrator was a central issue. The accused appealed to the appellate court against the findings of both the magistrate and the primary judge, who had determined that the offence had been proved beyond reasonable doubt.

The appellate court was required to determine whether there had been a miscarriage of justice, specifically whether the findings of guilt were unreasonable or unsupported by the evidence. The core legal question was whether, on the whole of the evidence, it was open to the lower courts to find beyond reasonable doubt that the accused had committed the offence charged.

The court reasoned that the evidence, when considered in its entirety, was capable of supporting a finding of guilt beyond reasonable doubt. Furthermore, the evidence was also capable of excluding any reasonable alternative hypothesis that might have suggested the accused's innocence. Consequently, the court concluded that it was open to both the magistrate and the primary judge to find that the offence had been proved beyond reasonable doubt, and that no miscarriage of justice had occurred. The appeal was therefore dismissed.

Orders

Orders of the court

See [131]-[132]

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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