Nadjowh v The Queen - [2018] NTCCA 17

CITATION:Nadjowh v The Queen [2018] NTCCA 17
PARTIES:NADJOWH, Elonda
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:21555555
DELIVERED:  2 November 2018
HEARING DATE:  2 November 2018
JUDGMENT OF:  Riley AJ
CATCHWORDS:

CRIMINAL LAW – LEAVE TO APPEAL
Whether there is an arguable case – whether the trial judge erred in allowing
the trial to continue after the jury had been mistakenly provided with a number of documents not in evidence – whether trial judge’s directions insufficient to remedy risk of unsafe verdict – applicable principles – there is an arguable case – leave to appeal granted
CRIMINAL LAW – BAIL APPLICATION – BAIL APPLICATION AFTER
CONVICTION AND SENTENCING – BAIL PENDING APPEAL
Appeal Bail – Bail Act 1982 (NT) s 23A – whether special or exceptional
circumstances shown – major part of the custodial sentence will have been served before the hearing of the appeal – prospects of success on appeal – applicable principles – bail granted

Bail Act (NT) s 23A
McRoberts v The Queen (2018) NTCCA 11; R v Sharp (1999) QCA 393;
Barker v The Queen (1994) 78 A Crim R 1.
REPRESENTATION:
Counsel:
Applicant:M Aust
Respondent:  D Jones
Solicitors:
Applicant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril1805
Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nadjowh v The Queen [2018] NTCCA 17

No. 21555555

BETWEEN:
ELONDA NADJOWH

AND:
THE QUEEN

CORAM: RILEY AJ
Ex Tempore
REASONS FOR JUDGMENT
(Delivered 2 November 2018)

This is an application for leave to appeal, and for bail following conviction and sentence and pending appeal. The application for leave to appeal was introduced into the proceedings this morning and Mr Aust is to file the appropriate documentation in support of the application, by close of business on Monday. I point out that the only document that is required is the formal application.

In support of the application for leave reliance has been placed on the affidavits and other material before the Court in relation to the bail application.

As to the bail application, the situation is governed by s 23A of the Bail Act which provides that:
Where an appeal is pending in the Court of Criminal Appeal against a conviction or sentence, bail must not be granted by the court or any other court, unless it is established that special or exceptional circumstances exist justifying the grant of bail.

A recent discussion of the relevant considerations in relation to such an application was in the case of McRoberts v The Queen (2018) NTCCA 11. In that case it was observed that, while the totality of the circumstances must be looked at, there are two major matters regularly relied on to establish special or exceptional circumstances. Those matters are the likelihood that the whole or a major part of…

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 Nadjowh v The Queen

Details

AGLC: Nadjowh v The Queen [2018] NTCCA 17
Case: [2018] NTCCA 17
Decision Date: 2 November 2018

CaseChat Overview and Summary

The applicant, Nadjowh, sought leave to appeal against his conviction and sentencing. The dispute arose from an alleged error by the trial judge in allowing the trial to continue after the jury had been mistakenly provided with documents that were not in evidence. The applicant contended that the trial judge's subsequent directions were insufficient to remedy the risk of an unsafe verdict. The application was heard by Riley AJ.

The primary legal issue before the court was whether there was an arguable case for leave to appeal. This involved determining whether the trial judge erred in permitting the trial to proceed despite the jury's exposure to inadmissible evidence, and whether the directions given were adequate to mitigate any prejudice and prevent an unsafe verdict. A secondary issue concerned an application for bail pending the appeal, pursuant to section 23A of the *Bail Act 1982* (NT), which required consideration of whether special or exceptional circumstances were demonstrated.

Riley AJ found that there was an arguable case for leave to appeal, indicating that the grounds raised concerning the trial judge's handling of the evidentiary error and the sufficiency of directions had sufficient merit to warrant further consideration. In relation to the bail application, the court considered that a significant portion of the custodial sentence would likely be served before the appeal hearing, and coupled with the arguable prospects of success on appeal, these factors constituted special or exceptional circumstances. Consequently, leave to appeal was granted, and bail was granted pending the determination of the appeal.

Orders