TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 15 of 2021 (21836887)
DELIVERED: 30 December 2022
HEARING DATES: 15 and 16 September 2022
JUDGMENT OF: Grant CJ, Kelly, and Barr JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Unreasonable verdicts – Uncertainty and duplicity
Whether verdicts of guilty on counts 3 and 5 unreasonable and cannot be supported having regard to the evidence – Whether verdicts of guilty inconsistent with verdict of not guilty on another count – Whether conviction ambiguous or uncertain by reason of latent duplicity – Having regard to that evidence, and to the different elements which constitute each of the counts, no necessary or logical inconsistency between the not guilty verdict on count 1 and the guilty verdicts on counts 3 and 5 – Inconsistencies identified in the evidence concern matters of detail rather than essential features of the witness’s account – Witness’s account supported by objective circumstantial evidence – Not a case in which jury must necessarily have had a doubt about the appellant’s guilt on counts 3, or 5 – Jury able to be satisfied that money paid into appellant’s account came from the sale of cocaine from the robot package – Witness’s evidence was that all of the money deposited into appellant’s account was proceeds of sale of cocaine from the robot package – No evidence that proceeds of sale from some other supply of cocaine – No uncertainty or ambiguity in the guilty verdict on count 2 – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdict of guilty on count 2 unreasonable and cannot be supported having regard to the evidence – Inconsistencies identified in the evidence concern matters of detail rather than essential features of the witness’s account – Witness’s account supported by objective circumstantial evidence – Not a case in which jury must necessarily have had a doubt about the appellant’s guilt on count 2 – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether jury adequately and properly directed on elements of importation offence in count 2 – Whether jury directed as if offence was one of strict liability – Summing up did not make clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant had dealt with the cocaine in connection with its importation – Jury not directed as to the conduct which had to be established – Jury not directed that they could not find the appellant guilty if he had undertaken the conduct in question before the cocaine had come into existence or after it had been replaced with an inert substance – Jury not directed of unanimity requirement in relation to the conduct said to constitute the dealing – Appeal allowed and new…
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.
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Details
AGLC
Shortland v The King [2022] NTCCA 19
Case
[2022] NTCCA 19
Decision Date
CaseChat Overview and Summary
The appellant, Shortland, appealed against his conviction by a jury. The appeal concerned verdicts of guilty on counts 2, 3, and 5, and a verdict of not guilty on count 1. The central dispute revolved around whether the guilty verdicts were unreasonable, inconsistent with the acquittal on count 1, or affected by latent duplicity.
The court was required to determine whether the guilty verdicts on counts 3 and 5 were unreasonable and unsupported by the evidence, and whether they were inconsistent with the not guilty verdict on count 1. Additionally, the court considered whether the conviction on count 2 was ambiguous or uncertain due to latent duplicity, and whether the jury had been adequately directed on the elements of the importation offence in count 2, specifically concerning the requirement of dealing with the cocaine in connection with its importation and the need for unanimity on the conduct constituting that dealing.
Regarding counts 3 and 5, the court found no necessary or logical inconsistency between the acquittal on count 1 and the guilty verdicts on these counts. The inconsistencies identified in the evidence related to matters of detail rather than essential features of the witness's account, which was supported by objective circumstantial evidence. The jury was able to be satisfied that the money paid into the appellant's account came from the sale of cocaine from the robot package, and there was no evidence suggesting proceeds from other supplies. Consequently, the appeal against the convictions on counts 3 and 5 was dismissed. However, the appeal against the conviction on count 2 was allowed. The court determined that the summing up had failed to make clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant had dealt with the cocaine in connection with its importation, and that they had not been directed on the specific conduct required or the unanimity requirement in relation to that conduct. Therefore, a new trial on count 2 was ordered.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In supplementary submissions,[40] the appellant resiled somewhat from the contention that the acquittal on count 1 meant that the appellant was "entirely innocent" and that this had the effect of a finding of fact that the appellant had not imported (or sent) the clock and robot packages. Rather, the appellant relied on the following passage from Osland v The Queen:[41]When an appellate court sets aside a jury’s verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.[emphasis by underlining added by the appellant] In this case, the acquittal on count 1 did not necessarily demonstrate (as a matter of logic) that the jury did not accept Byerley’s evidence that the appellant had supplied her with the cocaine from the clock and robot packages.[42] It is well accepted that a jury may accept parts of a witness’s evidence while rejecting other parts, and also well accepted that a witness’s evidence in relation to a transaction or series of transactions may be sufficiently cogent to sustain a conviction on one offence charged but not another. Finally in relation to this ground of appeal, in further supplementary written submissions the appellant repeated the contention that the Crown case (both in its address to the jury and on sentencing) was that a conviction on count 3 depended on proof beyond reasonable doubt that the appellant had imported at least one of the packages, in particular the robot package. The appellant contended further that, in light of the acquittal on count 1, the trial judge correctly rejected the proposition that the jury could have found that the cocaine had been provided to Byerley in the robot package. In support of those contentions, the appellant relies on the following paragraph from the sentencing remarks (said to have been in response to a Crown submission that the trial judge should find that the jury convicted the appellant on count 3 on the basis that the cocaine supplied by Byerley was contained in the robot package).In relation to the Crown’s contention, I consider that such a finding, namely, to find beyond reasonable doubt that the cocaine was provided in the robot package, would be inconsistent with the jury’s verdict on count 1. Following the jury’s verdict on that count, in other words the jury’s failure to be satisfied beyond reasonable doubt that you imported either or both of the packages, I am not able to be satisfied beyond reasonable doubt that you did, in fact, import the robot package. It would not be permissible for me to go behind the verdict of acquittal and to speculate as to why the jury was not satisfied beyond reasonable doubt of each of the elements which the Crown set out to prove in relation to that charge.