Wheeler v The Queen - [2020] NTCCA 10

CITATION:Wheeler v The Queen [2020] NTCCA 10
PARTIES:WHEELER, Terry

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 22 of 2019 (21823971)
DELIVERED:  15 July 2020
HEARING DATE:  15 July 2020
JUDGMENT OF:  Southwood, Kelly and Hiley JJ

CATCHWORDS:
CRIME – Appeal – unlawful sexual intercourse – consent in issue – appeal against convictions – fresh evidence – sexually explicit photographs and video recordings discovered after trial – indicative of a consensual sexual relationship – whether miscarriage of justice – concession by the Crown – principles to be applied whether or not fresh evidence – principles to be applied if fresh evidence – Retrial ordered – Crown consents
Gallagher v The Queen (1986) 160 CLR 392; Lawless v The Queen (1979) 142 CLR 659; Mickelberg v The Queen (1989) 167 CLR 259; Ratten v The Queen (1974) 131 CLR 510; Rodi v State of Western Australia (2018) 265 CLR 254; R v Abou-Chabake [2004] NSWCCA 356, referred to.
REPRESENTATION:
Counsel:
Appellant:S Cox QC
Respondent:  M Nathan SC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wheeler v The Queen [2020] NTCCA 10

No. CA 22 of 2019 (21823971)
BETWEEN:

TERRY WHEELER

Appellant

AND:

THE QUEEN

Respondent

CORAM: SOUTHWOOD, KELLY and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 15 July 2020)
THE COURT
Introduction

On 18 April 2019, the appellant was convicted by a jury of two counts of sexual intercourse without consent. Count 1 was a charge of cunnilingus. Count 2 was a charge of digital vaginal sexual intercourse. The complainant was SY. On 6 June 2019 the appellant was sentenced to five years’ imprisonment on each count, to be served concurrently, backdated to 30 May 2018 and suspended after serving three years’ imprisonment.
The appellant filed an application for leave to appeal against conviction and an application for an extension of time within which to appeal. On 15 February 2020, his Honour Barr J granted the appellant an extension of time to file an application for leave to appeal and leave to appeal on the single ground that by reason of the discovery of fresh evidence or, alternatively, new evidence, subsequent to trial a substantial miscarriage has occurred.
On 1 July 2020, senior counsel for the Crown, Mr Nathan SC, wrote to the presiding Judge’s Associate and informed the Court that, in the context of the issues in the case, the respondent conceded that the new material relied on by the appellant is sufficiently probative that its absence in the trial caused a miscarriage of justice warranting a retrial of the appellant. The respondent also conceded that the proviso ought not to be enlivened in this case. He was correct to do so.
The two incidents of sexual intercourse which are the subject…

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 Wheeler v The Queen

Details

AGLC: Wheeler v The Queen [2020] NTCCA 10
Case: [2020] NTCCA 10
Decision Date: 15 July 2020

CaseChat Overview and Summary

Wheeler appealed his convictions for unlawful sexual intercourse to the Supreme Court of Victoria. The central dispute revolved around the issue of consent, with the appellant arguing that his convictions were unsafe and should be overturned.

The Court was required to determine whether the discovery of fresh evidence, specifically sexually explicit photographs and video recordings, constituted a miscarriage of justice. These materials were discovered after the trial and were argued to be indicative of a consensual sexual relationship between the appellant and the complainant. The Court had to consider the principles applicable to appeals based on fresh evidence, and whether such evidence, if it had been available at trial, might have led to a different verdict.

The Court applied the principles governing the admission of fresh evidence on appeal, which require the evidence to be credible, relevant, and such that it could not have been obtained with reasonable diligence at the time of trial. Crucially, the Crown conceded that the fresh evidence was significant and that its non-disclosure at trial might have led to a miscarriage of justice. The Court, accepting the Crown's concession and considering the potential impact of the fresh evidence on the jury's assessment of consent, concluded that a retrial was warranted.

The Court ordered that the convictions be quashed and that a retrial be held.

Orders