Thyer v Whittington (No 2) - [2018] NTSC 31

CITATION:Thyer v Whittington (No 2) [2018] NTSC 31
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:  18 May 2018
DELIVERED AT:  Darwin
HEARING DATE:  23 August 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – COSTS OF UNSUCCESSFUL APPEAL FROM THE LOCAL COURT
Unsuccessful appeal by defendant against conviction and sentence – no error found on part of Local Court – costs should follow the event – respondent did not conduct appeal unreasonably or in a manner which occasioned unnecessary expense – lump sum costs order appropriate.
Local Court (Criminal Procedure) Act (NT) s 77C, s 78, s 163, s 177, s 178, s 179
Local Court (Criminal Procedure) Regulations (NT) r 4, r 5
Supreme Court Rules (NT) O 1, O 63, O 83
Hamdorf v Riddle [1971] SASR 398, Latoudis v Casey (1990) 97 ALR 45, Lovering v Brough (1985) 36 NTR 59, Mines v Doddrell [1938] SASR 90, Tipping v Heinemann [1922] SASR 424, Tonkin v Stanton (No 2) (Unreported, Supreme Court of South Australia, No 950 of 1986, 17 July 1986), Walters v Owens (1973) 21 FLR 138, 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:  GRA1813
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Thyer v Whittington (No 2) [2018] NTSC 31

LCA 29 of 2016 (21605916)
BETWEEN:

CAMERON THYER

Appellant

AND:

ROBERT GREGORY WHITTINGTON

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 18 May 2018)

On 23 August 2017, I delivered the decision in an appeal brought by the appellant pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT) from an order or adjudication of the Local Court finding the appellant guilty of one count of aggravated assault contrary to s 188 of the Criminal Code (NT).
The appeal was brought against both conviction and sentence. The appeal against conviction related to the reliance placed by the trial judge on the photographs depicting the complainant’s injuries. The appeal against sentence was brought on the basis that the imposition of a conviction was manifestly excessive, and occasioned by an erroneous consideration of the appellant’s plea of not guilty.
I dismissed the appeal for the reasons described in Thyer v Whittington [2017] NTSC 66. The respondent then made application for his costs of the appeal.
The statutory provisions
The appeal was brought pursuant to s 163(1) of the Local Court (Criminal Procedure) Act (NT). The power to award costs on appeal is conferred by s 177 of the Local Court (Criminal Procedure) Act, which provides relevantly:
(2) Upon the hearing of the appeal the Supreme Court may do any or all of the following:
(e)subject to subsections (2A) and (2B), make such further or other order as to costs…

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 (No 2)

Details

AGLC: Thyer v Whittington (No 2) [2018] NTSC 31
Case: [2018] NTSC 31
Decision Date: 18 May 2018

CaseChat Overview and Summary

Cameron Thyer, the appellant, appealed against both his conviction and sentence, which were imposed by the Local Court for the offence of aggravated assault. The respondent, Robert Gregory Whittington, applied for costs of the appeal to be paid by the appellant. The Supreme Court of the Northern Territory dismissed the appeal against conviction and sentence. The Court assessed the matter in accordance with the statutory provisions governing appeals from the Local Court and its rules. The Court concluded that the respondent did not conduct the appeal unreasonably or in a manner which occasioned unnecessary expense and ordered the appellant to pay the respondent’s costs of the appeal in a lump sum amount of $1,500. The appellant was to pay the costs to the Registry Manager of the Supreme Court within 28 days, which, on receipt, was to be paid to the solicitors for the respondent.

Orders