Qadir v O’Neill - [2012] NTSC 54

Qadir v O’Neill [2012] NTSC 54
PARTIES: QADIR, Mohammad Nawaz
v

O’NEILL, Wayne

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 11 of 2012 (21101131)
DELIVERED:   8 August 2012
HEARING DATES:   27 June 2012
JUDGMENT OF:   BARR J
APPEAL FROM:   TRIGG SM
CATCHWORDS:
CRIMINAL LAW – APPEAL – EVIDENCE ON APPEAL

Tender of fresh evidence on appeal – statutory requirements – discretion to admit – reasonable explanation as to why evidence was not adduced below – fresh evidence, if received, would afford a ground of appeal – evidence admitted – appeal allowed
CRIMINAL LAW – APPEAL – NEW EVIDENCE

New evidence admitted on appeal – relevant information and supporting documents were not provided to magistrate – not necessary for appellant to show “an error or mistake” – appeal allowed
Justices Act (NT) s 176A, s 177
Sentencing Act (NT) s 98
Leany v Bell (1992) 108 FLR 360, followed

Hook v Ralphs (1987) 45 SASR 529; Pagett v Hales [2000] NTSC 35; Smith v Torney (1984) 29 NTR 31, considered
REPRESENTATION:
Counsel:
Appellant:   Self-represented
Respondent:   D Jones
Solicitors:
Appellant:   Self-represented
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   Bar1210
Number of pages:   10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Qadir v O’Neill [2012] NTSC 54

No. JA 11 of 2012 (21101131)
BETWEEN:

MOHAMMAD NAWAZ QADIR

Appellant:

AND:

WAYNE O’NEILL

Respondent:

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 8 August 2012)

The appellant was a taxi driver at the time of offending in December 2010 and continued to work as a taxi driver until his licence to drive a commercial passenger vehicle was suspended by the Deputy Registrar of Motor Vehicles with effect from 7 July 2011.
On 15 December 2010, the vehicle driven by the appellant struck and caused serious injury to a 61-year-old pedestrian, who was walking on Manunda Terrace, Karama. The appellant was 21 years old at the time.
On 12 December 2011, the appellant pleaded guilty before the Court of Summary Jurisdiction to a single count of hit and run contrary to s 174FA Criminal Code, committed by him on 15 December 2010. The precise charge was that, being the driver of a vehicle which was involved in an incident which involved serious harm to a person, he, as the driver, failed to stop the vehicle at the scene of the incident and give any assistance to the person that was reasonable in the circumstances.
Relevant to this appeal, the agreed facts[1] in the Court of Summary Jurisdiction were as follows:-
At around 7.30pm during the evening of 15 December 2010, the offender was at home at 3 Kybra Court Karama with his brother Mr Nasar Qadir.
At about 7:30pm the offender left the family home to travel to his girlfriend’s place in Karama driving a Tarago Taxi Van NT Registration 963942, taxi 800 (“the vehicle”).

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 Qadir v O’Neill

Details

AGLC: Qadir v O'Neill [2012] NTSC 54
Case: [2012] NTSC 54
Decision Date: 8 August 2012

CaseChat Overview and Summary

The case of Qadir v O'Neill involved an appeal against the conviction and sentence imposed by the Magistrates' Court of Victoria. The appellant, Qadir, was convicted of assault and theft. The primary issue before the Court of Appeal was whether the trial judge should have admitted fresh evidence that was not presented at the original trial. This evidence, which included witness statements and supporting documents, was crucial to the appellant's defence.

The court was required to decide whether the statutory provisions concerning the admission of fresh evidence on appeal were satisfied, and whether the trial judge had the discretion to admit such evidence. The court noted that under the relevant statute, the appellant needed to provide a reasonable explanation for not producing the evidence at the original trial and demonstrate that the fresh evidence, if received, would afford a ground of appeal. The court also considered the principle that it was not necessary for the appellant to show an error or mistake occurred at the original trial for the fresh evidence to be admitted.

The Court of Appeal held that the trial judge should have admitted the fresh evidence, as the appellant had provided a reasonable explanation for its non-production at the original trial and the evidence, if received, would afford a ground of appeal. The court found that the trial judge's failure to admit the fresh evidence was an error that materially affected the appellant's case. Consequently, the Court of Appeal allowed the appeal, quashed the conviction and sentence, and remitted the matter to the Magistrates' Court for retrial.

Orders