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Thyer v Whittington

Thyer v Whittington

Case [2017] NTSC 66 23 August 2017

Appeal

Jurisdiction

Admissibility of Evidence

Expert Evidence

Sentencing

Criminal Law

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CITATION:Thyer v Whittington [2017] NTSC 66
PARTIES:THYER, Cameron

v
WHITTINGTON, Robert Gregory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 29 of 2016 (21605916)
DELIVERED ON:  23 August 2017
DELIVERED AT:  Darwin
HEARING DATE:  3 March 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Whether impermissible reliance placed by judge on photographs depicting complainant’s injuries – reasons for decision to be read as a whole – judge used photographs to assess and reject the appellant’s account of the physical altercation with the complainant – injuries depicted in the photographs inconsistent with the nature of the contact and the degree of force which the appellant asserted – expert evidence in relation to cause and severity of injuries not required for that purpose – no error disclosed – trial judge preferred evidence of prosecution witnesses – no substantial miscarriage of justice – appeal dismissed.
Criminal Code Act (NT) s 27, s 29, s 188
Local Court (Criminal Procedure) Act (NT) s 177
Douglass v The Queen (2012) 290 ALR 699, Liberato v The Queen (1985) 159 CLR 507, Bird v Peach (2006) 17 NTLR 230, Politis v Federal Commissioner of Taxation (1988) 16 ALD 707, R v Beserick (1993) 30 NSWLR 510,referred to.
CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether sentence was manifestly excessive – finding of good character and extenuating circumstances – conviction recorded because of not guilty plea and finding of guilt following trial – exercise of discretion not to record conviction not necessarily excluded by a plea of not guilty – evidence of unintentional contact rejected by the trial judge – relevant to the seriousness of the offending, remorse and character – relevant considerations in the exercise of the discretion – no error disclosed – appeal dismissed.
Sentencing Act (NT) s 8
Carnese v The Queen [2009] NTCCA 8, Cobiac v Liddy (1969) 119 CLR 257, Jones v Morley (1981) 29 SASR 57, Toohey v Peach (2003) 141 A Crim R 437, referred to.
REPRESENTATION:
Counsel:
Appellant:PJ Maley
Respondent:  R Murphy
Solicitors:
Appellant:Maleys
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1712
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Thyer v Whittington [2017] NTSC 66

LCA 29 of 2016 (21605916)
BETWEEN:

CAMERON THYER

Appellant

AND:

ROBERT GREGORY WHITTINGTON

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 23 August 2017)

This is an appeal against both conviction and sentence brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT).
On 4 November 2016 the appellant was found guilty in the Local Court of one count of aggravated assault contrary to s 188 of the Criminal Code (NT).
Following the finding of guilt the appellant was convicted of that offence and fined seven penalty…

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 Thyer v Whittington

Details

AGLC: Thyer v Whittington [2017] NTSC 66
Case: [2017] NTSC 66
Decision Date: 23 August 2017

CaseChat Overview and Summary

The appellant, Cameron Thyer, appealed against his conviction and sentence for aggravated assault. The appeal against conviction concerned the trial judge’s reliance on photographs depicting the complainant’s injuries in rejecting the appellant’s evidence and finding him guilty. The appeal against sentence concerned the judge’s failure to take into account the appellant’s plea of not guilty and his otherwise good character in deciding whether or not to record a conviction.The appeal against conviction failed because the trial judge’s reasons for decision read as a whole did not reveal any error in principle. The judge did not place inappropriate weight on the photographs. The judge was entitled to use the photographs to assess and reject the appellant’s account of the physical altercation with the complainant because the injuries depicted were inconsistent with the nature of the contact and the degree of force which the appellant asserted. The judge’s methodology did not breach the principle expressed by Brennan J in Liberato v The Queen because the judge did not eschew the need to consider whether the appellant’s evidence nevertheless gave rise to a reasonable doubt. The trial judge was in the best position to assess the reliability of the prosecution witnesses. There is nothing apparent from the transcript which suggests unreliability on their part or error on the part of the judge in his assessment, and nothing to suggest that a tribunal of fact could not reasonably have accepted that evidence to the requisite standard. The appeal against sentence also failed because the trial judge properly took into account the appellant’s plea of not guilty and good character in deciding whether or not to record a conviction. The existence of a prescribed state of affairs is not a “mere peg” on which to hang leniency. It was open to the sentencing judge to record a conviction in circumstances where the appellant had given evidence that the contact was unintentional but the court had preferred directly contradictory evidence from three prosecution witnesses to the effect that the appellant had intentionally head-butted the complainant. The finding informed a number of considerations relevant to the question whether a conviction should or should not be recorded, including the seriousness of the offending, remorse and character.

Orders