R v Perry (a pseudonym) (No 4) - [2016] ACTSC 370

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:		R v Perry (a pseudonym) (No 4)
Citation:		[2016] ACTSC 370
Hearing Date(s):		15, 16 September 2016
DecisionDate:		19 September 2016
Reasons Date:		19 December 2016
Before:		Penfold J
Decision:	1. The no-case submission in relation to Counts 1 and 2 is upheld. 2. Verdicts of not guilty are entered in relation to Counts 1 and 2. 3. The no-case submission in relation to Counts 3, 4, 5 and 6 is refused.
Catchwords:		CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – accused charged with one count each of burglary, theft and dishonestly take motor vehicle without consent and three counts of obtain property by deception – whether evidence is capable of sustaining verdict of guilty – whether evidence capable of excluding hypothesis consistent with innocence – jury discharged from entering verdicts in relation to charges of burglary and theft.
Legislation Cited:		Crimes Act 1900 (ACT), s 287 Criminal Code 2002 (ACT), ss 326, 328, 330, 371
Cases Cited:		Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 Doney v The Queen [1990] HCA 51; 171 CLR 207 Gilson v The Queen [1991] HCA 24; 172 CLR 353 Martiniello v The Queen [2006] ACTCA 28 R v Morris (1997) 98 A Crim R 408 R v Perry (a pseudonym) (No 3) [2016] ACTSC 341 R v Preddy [1996] UKHL 13; AC 815 Re Holmes [2005] 1 Cr App R 16
Parties:		The Queen (Crown) Tom Perry (a pseudonym) (Accused)
Representation:		Counsel Mr A Williamson (Crown) Mr J Masters (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:		SCC 218 of 2015

Introduction

Tom Perry (a pseudonym) has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.

The offences

The burglary with which Mr Perry is charged took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. The theft with which Mr Perry is charged involved the removal from the burgled premises of a large number of items including car keys and a wallet containing a number of credit and debit cards.

Around 7.30 am that day, a car was taken from outside the burgled premises, using the stolen car keys. This is the offence of taking a motor vehicle dishonestly and without consent with which Mr Perry is charged.

At 7.51 am that day, one of those men (the first man) used one of the stolen cards to buy cigarettes costing around $83 from a supermarket at Erindale.

Two minutes later the other man (the second man) used another one of the stolen cards to buy cigarettes for around $50 at the same supermarket.

Shortly afterwards, the second man used the same card to buy more cigarettes at a petrol…

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 Perry (a pseudonym) (No 4)

Details

AGLC: R v Potts (No 4) [2016] ACTSC 370
Case: [2016] ACTSC 370
Decision Date: 19 September 2016

CaseChat Overview and Summary

The defendant, Perry, was before the court on a no-case submission following charges of burglary, theft, dishonestly taking a motor vehicle without consent, and obtaining property by deception. The matter was heard in an Australian court, with the prosecution's case having been presented in full. The central issue for the court was to determine whether the evidence presented was sufficient to allow a jury to find the defendant guilty on all counts. Specifically, the court had to assess whether the evidence was capable of sustaining a verdict of guilty and whether it could exclude any reasonable hypothesis consistent with the defendant's innocence.

The court meticulously examined the evidence in relation to each count. It found that the evidence was insufficient to sustain a conviction for the charges of burglary and theft. The court determined that there was a significant possibility that the defendant could be innocent of these charges, given the evidence presented. Consequently, the court accepted the no-case submission for these counts and discharged the jury from entering verdicts regarding the burglary and theft charges. However, for the remaining counts of obtaining property by deception and the dishonest taking of a motor vehicle, the court found the evidence to be sufficient, and thus the no-case submissions were rejected for these counts.

The court's decision resulted in the formal entry of not guilty verdicts for the burglary and theft charges, while allowing the other charges to proceed to trial. This outcome reflects the court's role in ensuring that the prosecution's evidence meets the necessary legal standards before a case can be sent to a jury.

Orders

Orders of the court

1. The no-case submission in relation to Counts 1 and 2 is upheld.

2. Verdicts of not guilty are entered in relation to Counts 1 and 2.

3. The no-case submission in relation to Counts 3, 4, 5 and 6 is refused.

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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