Muller v The Queen - [2016] NTCCA 1

Muller v The Queen [2016] NTCCA 1

PARTIES:LANE JOSEPH MULLER

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 14 of 2015 (21436631)
DELIVERED:  28 JANUARY 2016
HEARING DATES:  16-20 NOVEMBER 2015
JUDGMENT OF:  MILDREN AJ
APPEALED FROM:  HILEY J
REPRESENTATION:
Counsel:
Appellant:L Bennett
Respondent:  S Geary
Solicitors:
Appellant:LBLLB Louise Bennett Criminal Lawyers
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgement ID Number:                    Mil16537
Number of pages:  6

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Muller v The Queen [2016] NTCCA 1
No. CA 14 of 2015 (21436631)

BETWEEN:

LANE JOSEPH MULLER

Applicant

AND:

THE QUEEN

Respondent

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 28 January 2016)
Mildren AJ:

This is an application for leave to appeal against conviction. The usual practice is that applications for leave are dealt with by a single Judge exercising the powers of the Court of Criminal Appeal[1] and no reasons are required to be given[2]. I have decided to provide short reasons in this case because the grounds relied upon are unusual.
The applicant was found guilty by a jury of the offence of having had sexual intercourse without consent. The trial commenced on 16 November 2015. The evidence, closing addresses and the learned trial judge’s summing up concluded on the 19^th of November and on the afternoon of that day the jury retired to consider its verdict. However, there was an air-conditioning malfunction such that the jury deferred deliberations until the following day. At some time shortly before the jury had been deliberating for 6 hours on the 20^th, which was a Friday, the foreman sent a note to the trial judge to the effect that the jury was unable to come to a unanimous verdict and that the foreman did not believe that the jury would get to a position when it would. The trial Judge did not re-convene the Court, nor were the contents of the foreman’s note made aware to counsel immediately. His Honour decided to wait until the statutory 6 hours had passed and then reconvened the Court in the absence of the jury. His Honour then revealed the contents of the foreman’s note and advised that, subject to anything counsel might have to say, he proposed to tell the jury that he was able to take a majority of verdict of ten and to give them a Black direction at the same time. His Honour also indicated that he intended to tell the jury that the Court would reconvene at 4:30pm “just so that everybody can decide whether or not they want to sit on tonight or come back tomorrow or Monday.” No objection was taken by either counsel to the course which his Honour proposed.
Shortly thereafter, the precise time of which is unclear, but it was after 3:15pm, the Court resumed and his Honour began by confirming…

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 Muller v The Queen

Details

AGLC: Muller v The Queen [2016] NTCCA 1
Case: [2016] NTCCA 1
Decision Date: 28 JANUARY 2016

CaseChat Overview and Summary

Muller appealed to the Supreme Court of the Northern Territory against his conviction for aggravated assault. The dispute concerned whether the trial judge had erred in law by failing to direct the jury on the defence of self-defence in circumstances where the appellant had not explicitly raised it.

The central legal issue before the Court was whether the trial judge was obliged to direct the jury on the defence of self-defence, even though the appellant had not raised it as a defence during the trial. This involved considering the circumstances in which a judge must raise a defence *sua sponte* (of their own motion) and the threshold for such an obligation.

Mildren AJ held that a trial judge is not required to direct a jury on a defence that has not been raised by the accused unless there is some evidence that, if accepted, could potentially establish the elements of that defence. In this instance, the evidence presented did not suggest that the appellant had acted in self-defence, and therefore, the trial judge was not obliged to raise the defence. The appeal was dismissed.

Orders