R v Chifuntwe (No 2) - [2017] ACTSC 134

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chifuntwe (No 2)
Citation:	[2017] ACTSC 134
Hearing Dates:	13 June 2017 – 14 June 2017
DecisionDate:	15 June 2017
Before:	Elkaim J
Decision:	See paragraph [98]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – aggravated robbery – act endangering life – fail to stop for police – identification – circumstantial evidence.
Legislation Cited:	Crimes Act 1900 (ACT) ss 27(3)(c) and s 27(4)(b) Criminal Code 2002 (ACT) s 310 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C Supreme Court Act 1933 (ACT) s 68B
Cases Cited:	R v Hillier [2007] HCA 13; 228 CLR 618
Parties:	The Queen (Crown) Kalonga Chifuntwe (Accused)
Representation:	Counsel Ms S McFarland (Crown) Mr R Davies (Accused)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016

ELKAIM J:

The accused pleaded not guilty to two counts on an indictment filed on 1 December 2016.

The first count alleges that, on 16 May 2016, at Canberra in the Australian Capital Territory, the accused committed robbery in company with an unknown person.

The second count alleges that, on 18 May 2016, also in Canberra, the accused used an offensive weapon likely to endanger human life or cause grievous bodily harm to Senior Constable Matthew Carpenter, intending to prevent or hinder his lawful apprehension.

There is also a ‘backup charge’ of failing to stop a motor vehicle for police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). This charge is essentially relied upon as an alternative to the second count.

In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.

The first count is an offence under s 310 of the Criminal Code 2002 (ACT). The second count is an offence under ss 27(3)(c) and 27(4)(b) of the Crimes Act 1900 (ACT).

In respect of the first count, it is alleged that, on 16 May 2016, the accused and an unknown person awoke a man sleeping in a Mercedes-Benz. They threatened this man and drove away in his motor vehicle.

In respect of the second count, it is alleged that, on 18 May 2016, Senior Constable Carpenter tried to stop the Mercedes-Benz, which was being driven by the accused. The accused did not stop and drove directly towards the officer. The officer moved out of the way of the vehicle, which left the scene at speed.

Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict.

The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be…

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 R v Chifuntwe (No 2)

Details

AGLC: R v Chifuntwe (No 2) [2017] ACTSC 134
Case: [2017] ACTSC 134
Decision Date: 15 June 2017

CaseChat Overview and Summary

In this case, the respondent, Chifuntwe, appealed against his conviction and sentence for aggravated robbery and failing to stop for police. The appeal was heard in the High Court of Australia. The respondent had been found guilty of aggravated robbery and failing to stop for police, with the jury convicting him based on circumstantial evidence, including identification by witnesses and the respondent's failure to stop for police. The trial was conducted before a judge alone due to the respondent's election. The respondent argued that the trial judge had erred in allowing certain evidence and in failing to direct the jury on the standard of proof beyond reasonable doubt.

The legal issues before the court involved the admissibility of evidence and the standard of proof in a judge alone trial. The respondent contended that the trial judge had erred in admitting evidence of his failure to stop for police, arguing that it was prejudicial and irrelevant. Additionally, the respondent claimed that the trial judge should have directed the jury on the standard of proof, but had failed to do so. The court was required to determine whether the trial judge had correctly exercised their discretion in admitting the evidence and whether the failure to direct the jury on the standard of proof constituted a miscarriage of justice.

The court held that the trial judge had not erred in admitting evidence of the respondent's failure to stop for police, as it was relevant to his character and conduct. The court also found that the trial judge had not erred in failing to direct the jury on the standard of proof, as the jury had been adequately directed on the elements of the offences and the burden of proof. The court concluded that the evidence, when considered as a whole, was sufficient to satisfy the criminal standard of proof beyond reasonable doubt. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed and the conviction and sentence of the respondent be upheld. The court did not alter the sentence imposed by the trial judge, which was a term of imprisonment with a non-parole period.

Orders

Orders of the court

See paragraph [98]

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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