R v Gregory Dean Hill - [2010] ACTSC 18

R v GREGORY DEAN HILL
[2010] ACTSC 18 (2 MARCH 2010)

CRIMINAL LAW – trial by judge alone – offences – attempting to receive stolen property – elements of offence of attempt – requirement for act to be more than mere preparatory.
EVIDENCE – criminal trial – Crown witness – unfavourable witness – no prior inconsistent statement – prosecution not permitted to cross-examine.

Crimes Act 1900 (ACT), s 262
Supreme Court Act 1933 (ACT), s 68C
Criminal Code 2002 (ACT), s 14, s 17, s 18, s 44, s 300, s 313, s 314
Evidence Act 1995 (Cth), s 38, s 128
Criminal Code (Cth), s 4.1, s 11.1

R v Boston (1923) 33 CLR 386
Fleming v The Queen (1998) 197 CLR 250
R v Lee (2007) 71 NSWLR 120
Comer v Bloomfield (1971) 55 Cr App R 305
Kyprianou v Reynolds (1969) 113 S J 563

The Commonwealth Criminal Code: The Guide for Practitioners, Commonwealth Attorney-General’s Department and Australian Institute of Judicial Administration, March 2002
Meehan E, The Law of Criminal Attempt – A Treatise (Carswell Legal Publications, 1984)

No. SCC 275 of 2008

Judge: Gray J
Supreme Court of the ACT

Date: 2 March 2010

IN THE SUPREME COURT OF THE )
) No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R
v
GREGORY DEAN HILL

ORDER

Judge:  Gray J
Date:  2 March 2010
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of guilty be entered in respect of the charge on the indictment.

After his committal, Gregory Hill, the accused, was charged on an indictment:

… that on the 1^st day of April 2008 at Canberra in the Australian Capital Territory GREGORY HILL dishonestly attempted to receive stolen property, namely, a black coloured Compaq brand laptop computer, knowing or believing that property to be stolen property.

Before the date allocated for his trial, he elected to be tried by judge alone.

Before the trial commenced, a fresh indictment was presented. That indictment charged:

… that on the 1^st day of April 2008 at Canberra in the Australian Capital Territory GREGORY HILL attempted to dishonestly receive stolen property, namely, a black coloured Compaq brand laptop computer.

A preliminary matter

Mr Gill, who appeared as counsel for the accused, objected that the indictment so framed was defective. It replaced the indictment laid after committal which had alleged the offence as “dishonestly attempted” and had the words “knowing or believing that property to be stolen property” last appearing. Whilst not challenging the change in placement of the adverb “dishonestly”, Mr Gill submitted that by not alleging that the accused knew that that property was stolen, the indictment set out a charge not known to the law of this Territory (cf R v Boston (1923) 33 CLR 386).

I do not agree that there is a defect apparent on the face of the fresh indictment. Even if Mr Gill’s qualification that an allegation in the indictment that knowledge, not belief, in the property being stolen is…

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 Gregory Dean Hill

Details

AGLC: R v Gregory Dean Hill [2010] ACTSC 18
Case: [2010] ACTSC 18
Decision Date: 2 MARCH 2010

CaseChat Overview and Summary

In the matter of the Commonwealth versus Gregory Dean Hill, the defendant was charged with attempting to receive stolen property. The case was heard by the court of summary jurisdiction, presided over by a judge sitting alone. The crux of the matter revolved around the elements required to constitute the offence of an attempt, specifically whether the act undertaken by the defendant was more than merely preparatory. Additionally, the court had to consider the admissibility of cross-examination of a Crown witness who had not provided a prior inconsistent statement.

The legal issues central to the case were whether the defendant's actions were sufficiently beyond the preparatory stage to constitute an attempt, and whether the prosecution was entitled to cross-examine a Crown witness on matters not covered in a prior inconsistent statement. The court had to evaluate whether the defendant’s conduct went far enough to establish an attempt to commit the offence, and if the prosecution's right to cross-examine on new matters was permissible under the circumstances. The court found that the defendant's actions were indeed more than preparatory and thus amounted to an attempt. Furthermore, the court held that the prosecution was not entitled to cross-examine the witness on matters not included in a prior inconsistent statement.

The court concluded that the defendant's actions were beyond mere preparation and amounted to an attempt to receive stolen property. It was determined that the prosecution could not expand the scope of cross-examination to include matters not addressed in the prior inconsistent statement. Consequently, the defendant was found guilty as charged. The court entered a verdict of guilty in respect of the charge on the indictment.

Orders

Orders of the court

A verdict of guilty be entered in respect of the charge on the indictment.

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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