Witt v The Queen - [2018] NTCCA 9

CITATION:Witt v The Queen [2018] NTCCA 9

PARTIES: WITT, Jason Scott

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:CCA 9 of 2017 (21525785)
DELIVERED:  12 April 2018
DELIVERED AT:  DARWIN
HEARING DATE:  12 April 2018
JUDGMENT OF:  SOUTHWOOD, BLOKLAND and BARR JJ
CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – intentionally exposing a child under the age of 16 years to an indecent film – miscarriage of justice – misdirection of jury about the elements of the offence – fundamental error which went to the root of the proceedings – appeal allowed

Hugo v R [2000] WASCA 199; (2000) 113 A Crim R 484, Wilde v R (1988) 164 CLR 365
REPRESENTATION:
Counsel:
Appellant:G O’Brien-Hartcher
Respondent:  M Nathan SC
Solicitors:
Appellant:McQueens Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Witt v The Queen [2018] NTCCA 9

No. CCA 9 of 2017 (21525785)
BETWEEN:

JASON SCOTT WITT

Appellant

AND:

THE QUEEN

Respondent

CORAM: SOUTHWOOD, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 12 April 2018)
THE COURT:

On 16 May 2017, following a trial by jury in the Supreme Court, the appellant was found guilty of count 1 on an indictment which charged him with intentionally exposing a child under the age of 16 years to an indecent film contrary to s 132(2)(e) and (4) of the Criminal Code. He was acquitted of count 2 on the indictment. On 19 May 2017, the appellant was sentenced by the court to imprisonment to the rising of the court.
The appellant has appealed against his conviction under s 410 and s 411(1) of the Criminal Code on the ground that there has been a miscarriage of justice as the trial Judge erred in law by providing the jury with an aide memoire which misstated the mental element of the offence and misdirecting the jury as to the mental element of the offence. The aide memoire that went to the jury was in the following terms.
In order to prove the accused guilty of the offence, the Crown must prove each of the following elements beyond reasonable doubt.
1.The accused exposed VP to an indecent film.
“Indecent” means unseemly, unbecoming or offensive to common propriety; something that would offend the modesty of the average person; and it must have a sexual connotation. Whether a film is “indecent” must be judged in light of the time, place and circumstance.
2.The accused intended to expose VP to an indecent film.
OR
The accused foresaw that a possible consequence of his conduct in inviting VP into the room was that she would be exposed to the indecent film [Emphasis added].
3.The accused did so without legitimate reason.
It is a question of fact for the jury to determine whether in all the…

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 Witt v The Queen

Details

AGLC: Witt v The Queen [2018] NTCCA 9
Case: [2018] NTCCA 9
Decision Date: 12 April 2018

CaseChat Overview and Summary

Witt appealed against his conviction for intentionally exposing a child under the age of 16 years to an indecent film. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Court was whether the trial judge had misdirected the jury on the elements of the offence, and if so, whether this constituted a miscarriage of justice warranting the quashing of the conviction.

The Court found that the trial judge's directions to the jury concerning the element of "intentionally exposing" were fundamentally flawed. Specifically, the judge failed to adequately explain that the prosecution bore the onus of proving the appellant's intention to expose the child to the film, rather than merely proving that the child saw the film as a result of the appellant's actions. This misdirection was considered a fundamental error that went to the root of the proceedings, leading to a miscarriage of justice. Consequently, the appeal was allowed, the conviction was quashed, and a retrial was ordered.

Orders