Thompson v The Queen - [2017] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Thompson v The Queen
Citation:	[2017] ACTCA 44
Hearing Date:	3 August 2017
DecisionDate:	12 October 2017
Before:	Murrell CJ, Mossop and Bromwich JJ
Decision:	The appeal be dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – appeal against conviction – where witnesses called out of planned order – whether error in giving leave to cross-examine witness under s 38 of the Evidence Act 2011 (ACT) – whether error in giving leave to recall witness under s 46 of the Evidence Act
Legislation Cited:	Evidence Act 2011 (ACT) ss 38, 46, 165, 192
Cases Cited:	Browne v Dunn (1893) 6 R 67 Stanoevski v The Queen [2001] HCA 4; 202 CLR 115
Parties:	Steven Thompson (Appellant) The Queen (Respondent)
Representation:	Counsel Mr J Masters (Appellant) Ms M Jones (Respondent)
Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 52 of 2015
Decision under appeal:	Court: Supreme Court of the ACT Before: Penfold J Date of Decision: 8 December 2015 Case Title: R v Thompson Court File Number: SCC 104 of 2015

THE COURT:

On 8 December 2015, following a trial by jury, the appellant was found guilty of five offences: burglary, theft, unlawful confinement, aggravated robbery and taking a motor vehicle without consent. His sentence hearing was originally scheduled to take place on 11 February 2016. It ultimately took place on 18 May 2016.

On 14 June 2016, the learned trial judge sentenced the appellant to five terms of imprisonment, partially concurrent and partially cumulative. The total sentence was six years, four months and five days, with a non-parole period of three years, four months and five days. His non-parole period expires in May 2018. He does not take any exception to the sentences imposed. Nor does the Crown.

On 15 December 2015, the appellant filed a notice of appeal against each of the five convictions. On 25 August 2016, that was replaced by an amended notice of appeal. On 27 February 2017, that too was replaced by a further amended notice of appeal. The grounds in that further amended notice of appeal were as follows (reproduced verbatim):

(i)The Court erred in allowing leave for the Respondent to cross examination its witness, Mr Jason David Atherton, as an unfavourable witness. [ground 1]
(ii)The court failed to properly apply the law in determining whether leave to cross examine should be granted. [ground 2]
(iii)The Court erred in law and procedure in allowing the Respondent to recall Senior Constable Curran after the evidence of Mr Atherton. [ground 3]
(iv)No direction was given to the jury under s 165 of the Evidence Act 2011 as to the unreliability of the evidence of Respondent witnesses, despite same being required; [ground 4]
(v)The court did not provide adequate directions in relation to speculation and common sense; [ground 5]
(vi)The Court gave an inadequate response to…

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 Thompson v The Queen

Details

AGLC: Thompson v The Queen [2017] ACTCA 44
Case: [2017] ACTCA 44
Decision Date: 12 October 2017

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction. The dispute concerned alleged errors made by the trial judge in admitting certain evidence during the trial. The appeal was heard by Murrell CJ, Mossop and Bromwich JJ of the Supreme Court of the Australian Capital Territory.

The primary legal issues before the Court of Appeal were whether the trial judge erred in granting the Crown leave to cross-examine a witness, Mr Jason Atherton, pursuant to section 38 of the *Evidence Act 2011* (ACT). The appellant also asserted error in the trial judge's decision to grant leave to recall Mr Atherton under section 46 of the *Evidence Act*.

The Court of Appeal dismissed the appeal. The Court reasoned that the trial judge had not erred in granting leave under section 38 of the *Evidence Act* to cross-examine Mr Atherton on specific inconsistencies between his oral evidence and his prior statement to police. While the appellant's trial counsel had objected to leave being granted on grounds of credibility, they did not object to leave being granted in respect of the identified inconsistencies. The Court also noted that the appellant had abandoned several grounds of appeal during the hearing, and leave to rely on another ground was refused as no direction under section 165 of the *Evidence Act* had been sought at trial. The remaining grounds, including those relating to section 38 and section 46, were ultimately not found to be grounds for appeal.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the commencement of the hearing of the appeal, counsel for the appellant (who did not appear at the trial) abandoned ground 7. During the course of the hearing of the appeal he also abandoned grounds 5 and 6. After deliberation during the morning tea adjournment, the Court refused leave to rely upon ground 4, it being common ground that no direction under s 165 of the Evidence Act 2011 (ACT) (Evidence Act) had been sought at the trial. Oral reasons for that refusal were given at the time. It follows that what remained for judgment, as addressed in these reasons, were grounds 1, 2 and 3. The trial judge succinctly summarised the facts as established by the evidence at trial in her Honour’s reasons for sentence as follows: The appellant asserted error under grounds 1 and 2 in the trial judge’s decision to grant leave to the Crown to examine a witness it had called, Mr Jason Atherton, by way of cross-examination under s 38 of the Evidence Act. Mr Atherton was called as the sixth witness in the Crown case, on the third day of evidence. The trial transcript makes it clear that it was originally anticipated that he would be the second witness, giving evidence immediately after the complainant, Ms Dudeck. However, he failed to appear several times, and a warrant was subsequently issued by the trial judge for his arrest. He was eventually brought to Court. Mr Atherton’s initial evidence was that he had known the appellant for about 20 years, but had only met Ms Dudeck once. He recalled Ms Dudeck coming to his house with the appellant in November or December 2015. He gave evidence about them sitting in his unit, her mumbling and the appellant firmly asking for her jewellery. He gave evidence about cash and receipts and his kitchen knife which he said “ended up” in the appellant’s hand. He described the knife and how the appellant handled it “towards the end” of the complainant’s jewellery being taken off. His evidence was that he could not recall the appellant saying anything while holding the knife or any other pieces of paper being involved. He described how they all left the unit together in Ms Dudeck’s car. Particular aspects of the evidence Mr Atherton gave were inconsistent with the statement he had given police on 10 November 2015, less than a month before the trial, but over 10 months after the events he referred to. The Crown made an application under s 38 of the EvidenceAct for leave to question Mr Atherton as though cross-examining him, pointing, in particular, to inconsistency between his oral evidence and his statement to police that he had seen the appellant holding a knife to Ms Dudeck’s throat and face. The leave was initially sought under all three paragraphs of s 38(1) and also as to credibility based on his association with the appellant under s 38(3). In the result, leave was confined to particular paragraphs of his statement that were inconsistent with his oral evidence. Leave as to credibility was reserved but not further pursued. Trial counsel for the appellant objected to leave being granted in respect of credibility, but did not take issue with leave being granted in respect of the identified paragraphs of Mr Atherton’s statement that were inconsistent with his oral evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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