Stott v The Queen (No 2) - [2016] ACTCA 70

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Stott v The Queen (No 2)
Citation:	[2016] ACTCA 70
Hearing Date:	2 November 2016
DecisionDate:	21 December 2016
Before:	Refshauge, Penfold and Burns JJ
Decision:	1. The appellant be granted leave to further amend the Amended Notice of Appeal. 2. Under r 5531 of the Court Procedures Rules 2006 (ACT) the appellant be permitted to rely on the new appeal ground despite counsel’s failure to seek a re-direction at the trial. 3. The appeal against the appellant’s conviction on Count 1 on the Indictment dated 10 June 2015 be upheld and the conviction is set aside. 4. A new trial be ordered on Count 1 of that Indictment.
Catchwords:	CRIMINAL LAW – Particular Offences – serious drug offences – trafficking in a controlled drug other than cannabis. CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – trial judge’s direction to jury erroneous – “reasonable possibility” – application of proviso –appellant lost chance of acquittal – appeal against conviction allowed – new trial ordered.
Legislation Cited:	Court Procedure Rules 2006 (ACT) r 5531 Evidence Act 2011 (ACT) s 165 Public Health Act 1997 (ACT) s 15A Prohibited Weapons Act 1996 (ACT) Supreme Court Act 1933 (ACT) s 37O
Cases Cited:	Filippou v The Queen [2015] HCA 29; 256 CLR 47 GW v The Queen [2015] ACTCA 15; 306 FLR 104 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Weiss v The Queen [2005] HCA 81; 224 CLR 300
Parties:	Sharon Ann Stott (Appellant) The Queen (Respondent)
Representation:	Counsel Mr S Odgers SC (Appellant) Ms M Jones (Respondent)
Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 12 of 2016
Decision under appeal:	Court: Supreme Court of the ACT Before: Walmsley AJ Date of Decision: 16 March 2016; 9 May 2016 Case Title: R v Stott Court File Numbers: SCC 107 of 2015; SCC 114 of 2015

Refshauge and Penfold JJ:

Introduction

We are grateful to have had the opportunity to read in draft the judgment of Burns J, and we rely on background material, in particular as to the circumstances of the matter, provided in that judgment.

The direction given by the trial judge that is challenged in this appeal was as follows:

Members of the jury, just one final thing: the issue that was discussed just before you left the courtroom, that evidence that Harley Boardman gave about Mr Vo telling him that he actually put drugs into the washing machine, it’s a matter for you as to what you make of that evidence. You would take it into account unless you think there’s a reasonable possibility that either Mr Vo didn’t say that at all to him or Mr Vo did say it and he was not telling the truth. There are a number of possibilities and it’s entirely a matter for you as to how you…

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 Stott v The Queen (No 2)

Details

AGLC: Stott v The Queen (No 2) [2016] ACTCA 70
Case: [2016] ACTCA 70
Decision Date: 21 December 2016

CaseChat Overview and Summary

The appeal before the Supreme Court of the Australian Capital Territory, Court of Appeal, concerned a conviction for serious drug trafficking. The appellant, Stott, sought to appeal against this conviction.

The central legal issue before the Court was whether the trial judge's directions to the jury regarding the concept of "reasonable possibility" in relation to the offence were erroneous. The Court was required to determine if this alleged error had deprived the appellant of a chance of acquittal and, if so, whether the proviso to the appeal powers should be applied.

The Court found that the trial judge's direction on "reasonable possibility" was indeed erroneous. Applying the principles of appellate review, the Court concluded that the error was significant enough to have prejudiced the appellant's case, meaning the appellant had lost a real chance of being acquitted. Consequently, the Court upheld the appeal against the conviction on Count 1 of the Indictment.

The Court ordered that the conviction on Count 1 be set aside and that a new trial be held for that count. Leave was also granted to amend the Notice of Appeal and to rely on a new ground of appeal, notwithstanding the failure to seek a redirection at trial.

Orders

Orders of the court

1. The appellant be granted leave to further amend the Amended Notice of Appeal.

2. Under r 5531 of the Court Procedures Rules 2006 (ACT) the appellant be permitted to rely on the new appeal ground despite counsel’s failure to seek a re-direction at the trial.

3. The appeal against the appellant’s conviction on Count 1 on the Indictment dated 10 June 2015 be upheld and the conviction is set aside.

4. A new trial be ordered on Count 1 of that 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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