R v Timbrell - [2018] ACTSC 136

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Timbrell
Citation:	[2018] ACTSC 136
Hearing Date:	11 – 20 April, 27 April, 4 May 2018
DecisionDate:	4 May 2018
Before:	Mossop J
Decision:	Not guilty on charge CC2017/4773 – obstruct territory public official.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – charged with resisting a public official in the exercise of their functions – charge transferred from the Magistrates Court – charge related to other charges – found not guilty in Supreme Court of other charges – Crown application to call additional evidence after advising content to deal with related charge on basis of evidence given during the trial and submissions by opposing counsel – application refused – not satisfied on evidence given at trial that resistance occurred when public official lawfully performing their functions – not guilty of offence charged
Legislation Cited:	Crimes Act 1900 (ACT), s 212(1)(b) Criminal Code 2002 (ACT), s 361 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), ss 68D, 68E, 68E(2), 68F
Cases Cited:	Licciardello v The Queen [2012] ACTCA 16; 6 ACTLR 233 R v Hill [2012] ACTSC 17; 6 ACTLR 167 Shaw v The Queen (1952) 85 CLR 365
Parties:	The Queen (Crown) Josephine Timbrell (Accused)
Representation:	Counsel M Fernandez (Crown) J Moffett (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Number:	SCC 238 of 2017

MOSSOP J:

Introduction

Josephine Timbrell is charged that on 28 April 2017 she did resist a public official, namely Stephen Phillips, in the exercise of his function as a public official of the Territory, knowing that he was a public official.

That charge was transferred to the Supreme Court as a related offence pursuant to s 90B of the Magistrates Court Act 1930 (ACT) when Ms Timbrell was committed to stand trial in the Supreme Court on other charges.

She was found not guilty of the other charges.

Section 68D of the Supreme Court Act 1933 (ACT) requires that the Court deal with any backup or related offences with which the accused has been charged if it is in the interests of justice. Section 68E of the Supreme Court Act requires that the related charge be dealt with by the trial judge on the basis of the evidence given at the trial on the indictable offences and any other evidence led pursuant to leave granted pursuant to s 68E(2).

Application to adduce further evidence

The complication in the present case was that neither party drew the Court’s attention to the existence of the related offence at the trial on the indictable offences. When the existence of the related offence was raised with the parties, the matter was listed in order to determine how to deal with it. The options that appear to exist under the Supreme Court Act would be to remit the related offence to the Magistrates Court under s 68F, deal with the related offence on…

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 Timbrell

Details

AGLC: R v Timbrell [2018] ACTSC 136
Case: [2018] ACTSC 136
Decision Date: 4 May 2018

CaseChat Overview and Summary

The case of R v Timbrell involved the defendant being charged with resisting a public official in the exercise of their functions. The charge was transferred from the Magistrates Court to the Supreme Court. This charge was related to other charges against the defendant, which were also considered in the Supreme Court. After a trial, the defendant was found not guilty of the other charges. The Crown then applied to call additional evidence to address the charge of resisting a public official, based on the evidence given during the trial and the submissions by the opposing counsel. The application was refused by the court.

The legal issues before the court included whether the Crown could call additional evidence after the close of their case and whether the evidence provided could satisfy the court that the defendant had committed the offence of resisting a public official when the official was lawfully performing their functions. The court needed to determine if the evidence presented during the trial was sufficient to establish the defendant's guilt regarding the resistance charge. Additionally, the court had to consider whether the additional evidence could sufficiently demonstrate that the resistance occurred while the public official was lawfully exercising their functions.

In assessing the Crown's application, the court concluded that it was not satisfied on the evidence given at the trial that the resistance occurred when the public official was lawfully performing their functions. The court found that the evidence did not clearly establish the elements of the offence as required by law. Consequently, the court ruled that the defendant was not guilty of the offence charged.

As a result of the court's decision, the defendant was acquitted of the charge of obstructing a public official. The court's refusal to allow additional evidence and its finding that the evidence at trial was insufficient to prove the offence led to the defendant's acquittal on the charge CC2017/4773.

Orders

Orders of the court

Not guilty on charge CC2017/4773 – obstruct territory public official.

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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