R v Robertson - [2009] ACTCA 19

DIRECTOR OF PUBLIC PROSECUTIONS v JOHN DESMOND THOMPSON
[2009] ACTCA 19 (26 NOVEMBER 2009)

CRIMINAL LAW – reference appeal by Director of Public Prosecutions – whether question of law arose “at” or “in relation to” a trial – exchanges in transcript between judge and counsel do not give rise to a question of law – defective application for a reference appeal.

Supreme Court Act 1993 (ACT), s 37S
Crimes Act 1900 (ACT), s 64

Federal Court of Australia Act 1976 (Cth), s 30A
Crimes Act 1958 (Vic), s 450A

Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364

Idoport Pty Ltd v National Australia Bank Ltd (No 5) [2000] NSWSC 148
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Director of Public Prosecutions v G (1999) 85 FCR 566
R v M R (2000) 116 A Crim R 23

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 3-2009
No. SCC 175 of 2008

Judges: Gray P, Penfold and Buchanan JJ

Court of Appeal of the Australian Capital Territory
Date: 26 November 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 3-2009
  )          No. SCC 175 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

AND:JOHN DESMOND THOMPSON
Interested Party

ORDER

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 November 2009
Place:  Canberra

THE COURT ORDERS THAT:

The application be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 3-2009
  )          No. SCC 175 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

AND:JOHN DESMOND THOMPSON
Interested Party

Judges:  Gray P, Penfold and Buchanan JJ
Date:  2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

Section 37S of the Supreme Court Act 1993 (ACT) (the Act) provides a facility for the Director of Public Prosecutions (the DPP), among others, to make an application that the Court hear an appeal in relation to a question of law arising “at” or “in relation to” a trial where an accused person has been tried on indictment and acquitted. The decision on such a reference appeal does not affect the verdict or decision given at the trial.

On 9 October 2008, John Desmond Thompson was charged with contravention of s 64(1) of the Crimes Act 1900 (ACT). The relevant parts of s 64 are as follows:

(1)A person commits an offence if—
(a)the person uses, offers or procures a child—
(i)for the production of child pornography; or
(ii)…; and

(b)the child is under 12 years old.
Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.

(2)Absolute liability applies to subsection (1) (b).
…
(5)In this section:
child pornography means anything that…

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 Robertson

Details

AGLC: R v Robertson [2009] ACTCA 19
Case: [2009] ACTCA 19
Decision Date: 26 November 2009

CaseChat Overview and Summary

This matter concerned a reference appeal by the Director of Public Prosecutions against the respondent, Robertson. The core of the dispute revolved around whether a question of law had arisen "at" or "in relation to" a trial, as required for the Director to bring such an appeal. The appeal was heard by Gray P, Penfold and Buchanan JJ.

The legal issues before the Court were whether the exchanges between the trial judge and counsel, as recorded in the transcript, constituted a question of law that could found a reference appeal, and whether the application for the reference appeal itself was defective.

The Court held that the exchanges in the transcript between the judge and counsel did not give rise to a question of law that could be the subject of a reference appeal. The Court found that the application for the reference appeal was defective, and therefore, no question of law arose in the manner contemplated by the relevant legislation.

Consequently, the Court ordered that the application for the reference appeal be dismissed.

Orders

Orders of the court

1. The application be dismissed.

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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