Thompson v The Queen; The Queen v Thompson - [2016] ACTCA 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Thompson v The Queen; The Queen v Thompson
Citation:	[2016] ACTCA 12
Hearing Date:	6 May 2015
DecisionDate:	6 May 2016
Before:	Refshauge, Burns and Rangiah JJ
Decision:	The appeal against conviction is upheld. The convictions are set aside and a new trial is ordered. The Crown appeal against sentence is dismissed.
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – unlawful confinement – aggravated burglary. APPEAL – Appeal to the Court of Appeal – appeal against jury verdict – whether verdicts were unsafe and unsatisfactory – whether the trial judge was required to provide a warning in accordance with s 38E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether leave should be granted to argue a ground of appeal where no objection was taken to at trial – whether the appeal should be dismissed pursuant to s 37O (3) of the Supreme Court Act 1933 (ACT) – appeal upheld – matter remitted to the Supreme Court for retrial.
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5531 Crimes Act 1958 (Vic) s 568 Crimes (Sentence Administration) Act 2005 (ACT) Evidence Act 1977 (Qld) ss 21A, 21AW Evidence (Miscellaneous Provisions) Act1991 (ACT) ss 38E, 43, 44, 45, 46, 47 Evidence (Closed Circuit Television) (Amendment) Act 1994 (ACT) s 6 Evidence (Closed Circuit Television) Ordinance 1989 (ACT) s 5 Evidence (Miscellaneous Provisions) Amendment Act2003 (ACT) Justice and Community Safety Legislation Amendment (No 3) Act 2000 (ACT) Legislation Act 2001 (ACT) ss 138, 139 Magistrates Court Act 1930 (ACT) s 90B Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) s 38E Supreme Court Act 1933 (ACT) ss 37E, 37O, 68D
Cases Cited:	Baini v The Queen (2012) 246 CLR 469 Filippou v The Queen 323 ALR 33 Klobucar v The Queen [2014] ACTCA 6 M v The Queen (1994) 181 CLR 487 R v Bisht (2013) 234 A Crim R 309 R v Coss [2015] QCA 33 R v DM [2006] QCA 79 R v HAB [2006] QCA 80 R v Hellwig (2007) 161 A Crim R 489 R v Michael (2008) 181 A Crim R 490 R v TN (2005) 153 A Crim R 129 Weiss v The Queen (2005) 224 CLR 300
Parties:	Andrew Francis Thompson (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) The Queen (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)
Representation:	Counsel Mr S Odgers SC (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) Mr J White SC (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)
Solicitors Kamy Saeedi Law (ACTCA 66 of 2014: Appellant; ACTCA 16 of 2015: Respondent) ACT Director of Public Prosecutions (ACTCA 66 of 2014: Respondent; ACTCA 16 of 2015: Appellant)
File Numbers:	ACTCA 66 of 2014; ACTCA 16 of 2015
Decision under appeal:	Court: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 8 December 2014 Case Title: R v…

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

Case: [2016] ACTCA 12
Decision Date: 6 May 2016

CaseChat Overview and Summary

Thompson and The Queen, and conversely The Queen and Thompson, were parties before the Court of Appeal of the Supreme Court of the Australian Capital Territory. The dispute concerned appeals against jury verdicts of guilty for offences including unlawful confinement and aggravated burglary.

The Court of Appeal was required to determine whether the jury verdicts were unsafe and unsatisfactory. Specifically, the Court considered whether the trial judge was obliged to provide a warning under section 38E of the *Evidence (Miscellaneous Provisions) Act 1991* (ACT), and whether leave should be granted to argue a ground of appeal where no objection was taken at trial. The Court also considered whether the appeal should be dismissed pursuant to section 37O(3) of the *Supreme Court Act 1933* (ACT).

The Court of Appeal upheld the appeal against conviction, finding the verdicts to be unsafe and unsatisfactory. Consequently, the convictions were set aside and a new trial was ordered. The Crown's appeal against sentence was dismissed.

Orders

Orders of the court

The appeal against conviction is upheld. The convictions are set aside and a new trial is ordered.

The Crown appeal against sentence is 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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