DPP (NT) v Moseley

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Riley CJ,Kelly,Barr JJ
• Judgment Date: 01 March 2013
• Neutral Citation: [2013] NTSC 8
• Docket Number: FILE NO: 86 of 2012 (21231745)
• Date: 01 March 2013

[2013] NTSC 8

FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWI

Judgment of:

Riley CJ, Kelly and Barr JJ

FILE NO: 86 of 2012 (21231745)

Between:

Office of the Director of Public Prosecutions

Plaintiff

and

Neil Moseley

Defendent

REPRESENTATION:

Counsel:

Plaintiff: M P Grant QC, P M Usher, C A Smyth

Defendant: S J Odgers SC, N Aughterson

Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) and Ors [2012] SASC 12 , applied

Grierson v The King (1938) 60 CLR 431 ; Harrison v Schipp (2002) 54 NSWLR 612; Hip Foong Hong v H Neotia & Co [1918] AC 888, considered

Bailey v Marinoff (1971) 125 CLR 529 , followed

Briginshaw v Briginshaw (1938) 60 CLR 336 ; McDonald v McDonald (1965) 113 CLR 529; Neath Holdings v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Reifek v McElroy (1965) 112 CLR 517; McDonald v McDonald (1965) 113 CLR 529, referred to

Moseley v The Queen [2012] NTCCA 11 , referred to

Criminal Code (NT), s 407(1)

Supreme Court Act (NT), s 14 (1)(b), s 21(1)

Equity Act 1866 (SA)

Supreme Court Act 1878 (SA)

COURT OF CRIMINAL APPEAL — DECISION OF COURT OF CRIMINAL APPEAL ALLEGED BASED ON FRAUD — JURISDICTION OF SUPREME COURT TO SET ASIDE — EQUITABLE JURISDICTION

Decision of the Court of Criminal Appeal, setting aside the defendant's conviction and granting retrial, alleged to have been actuated by fraud — whether the Supreme Court has jurisdiction in equity to set aside decision of the Court of Criminal Appeal — action on original bill part of the equitable jurisdiction of the Supreme Court of South Australia immediately before 1 January 1911 — incorporated into the original civil jurisdiction of the Supreme Court of the Northern Territory by s 14(1)(b) Supreme Court Act (NT) — held Supreme Court has jurisdiction to set aside the judgment of the Court of Criminal Appeal in the event fraud is established.

PRACTICE AND PROCEDURE

Preliminary questions as to jurisdiction of Supreme Court — referral by single Justice pursuant to s 21(1) Supreme Court Act — whether the Supreme Court has jurisdiction in equity to set aside decision of the Court of Criminal Appeal — if jurisdiction exists, whether the Supreme Court should decline to exercise — held no reason based on principles of criminal justice or equity for Supreme Court to decline exercise of jurisdiction in the event fraud is established.

REASONS FOR JUDGMENT

(Delivered 1 March 2013)

THE COURT

1 The issue for determination by the Court on the reference pursuant to s 21(1) of the Supreme Court Act is whether the Supreme Court in its equitable jurisdiction may set aside a judgment of the Court of Criminal Appeal, 1 which set aside the conviction of the defendant and ordered a fresh trial on the charge of aggravated robbery, in circumstances where the judgment of the Court of Criminal Appeal was actuated by fraud. For reasons set out below, we have found that the Supreme Court does have jurisdiction.

2 It should not be assumed from this judgment that the Court has made any finding as to the fraud alleged by the plaintiff against the defendant and other persons. There has been no hearing of the plaintiff's case and this judgment is concerned only with the preliminary issue.

3 Ultimately the plaintiff will bear the onus of proof of the alleged fraud. As Taylor J pointed out in McDonald v McDonald, 2 a judgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged. The required standard of proof is on the balance of probabilities, as explained by the High Court of Australia in its decisions in Briginshaw v Briginshaw, 3Rejfek v McElroy4 and Neat Holdings v Karajan Holdings Pty Ltd. 5

Background

4 The defendant was charged on indictment with aggravated robbery alleged to have been committed in company with Maximilian Tippett on 2 March 2011.

5 At the trial, there was no dispute that two men committed an aggravated armed robbery at a Kentucky Fried Chicken (KFC) shop in Coconut Grove, a Darwin suburb, shortly after 10.30 pm on 2 March 2011.

6 The amount stolen in the robbery was $2,900 in cash and coins. The coins were wrapped in brown coloured paper with the word ‘Armaguard’ printed on it.

7 The issue at trial in relation to the defendant was whether the prosecution could prove beyond reasonable doubt that he was one of the two robbers. Both robbers wore black clothes and were masked, and there was no identification evidence in respect of the defendant or Tippett. The prosecution relied upon circumstantial evidence, and upon alleged admissions made by the defendant to a man named Frank Holden, a friend of the defendant and Tippett.

8 During the robbery, one of the robbers attempted to pursue a KFC employee who jumped over the counter and ran away. However, the pursuing robber slipped and fell to the floor.

9 Immediately after the robbery, the robbers ran towards the back door of the KFC shop and left. The KFC shop manager went outside and saw the robbers sitting in a car which he identified as a red Commodore. That vehicle drove away quickly.

10 There was no dispute at trial that the appellant had rented a red Commodore on 26 February 2011, and that he was arrested in that car on 3 March 2011 driving towards Katherine. At the time of his arrest, the defendant had more than $1,300 in cash in his wallet. The cash was all in good condition. The appellant said in evidence that he had received $600 of that money as Centrelink payments; $400 for some work that he had done; that he had won a couple of hundred dollars at the Casino; and that he had borrowed $300 from Frank Holden, $150 of which he had given to Tippett. There was also evidence that he had spent some money on purchasing petrol and food for the Katherine trip.

11 At the time of the defendant's arrest, Police found a pair of black pants on the rear seat of the red Commodore. In a pocket of the black pants was brown paper with the word ‘Armaguard’ printed on it, similar to the wrapping on coins taken during the robbery. The defendant gave evidence at trial, but was unable to provide any explanation of how he might have innocently obtained the coins in such paper rolls. He claimed that he had never seen that paper before. 6

12 At the time of his arrest, the defendant had a number of bruises to the side of his knee and the underside of his forearm which the Crown submitted to the jury were caused by a fall inside the Kentucky Fried Chicken shop. 7

13 The Court of Criminal Appeal found that there was considerable evidence supporting a conclusion that the red Commodore sedan being driven by the defendant at the time of his arrest was the same vehicle used by the two robbers. 8

14 There was no dispute at the trial that the red Commodore was left at a location very near the Tippett family home at some time during the night of 2 March 2011. The prosecution led evidence that the robbery was reported at 10.48 pm, and that the defendant attempted six calls to Frank Holden between 10.56 pm and 10.59 pm, before getting through to Holden at 11.12 pm. The implication was that the defendant was concerned that Police would be looking for the red Commodore in connection with the robbery. Rather than continue to drive the vehicle, the defendant wanted Mr Holden to pick him up from where he had left the red Commodore.

15 The defendant in his evidence denied that he was one of the robbers and claimed that, at the time of the robbery, he had driven with his girlfriend to Casuarina Beach in Frank Holden's car. He said that he made one call to Holden to enquire whether Holden wanted food, and another to see if he wanted ice coffee or cigarettes.

16 The defendant claimed in evidence that he had lent the red Commodore to a friend named William Phillips, and that he did not get the car back until the following day, when he went to pick it up from its location near the Tippett family home. However, when the defendant was stopped in the red Commodore by police, and informed that police suspected it had been used in a robbery, the defendant did not mention that he had lent the car to anyone.

17 The defendant was unable to provide any details about ‘William Phillips’, other than saying that he lived on the Gold Coast. He claimed that he had never made a call to Phillips, nor received a call from him, on his mobile phone. He claimed that he telephoned Phillips on the morning of 3 March from a public phone at the Northlakes Shopping Centre because he had forgotten to take his mobile phone. The Centre was only a short distance from where he claimed he left his phone and there was no apparent reason why he would have made such a call from a public telephone. The Crown submitted that it was a remarkable and very suspicious coincidence that Mr Phillips had decided to leave the car at a location near the home of the Tippett family for no apparent reason.

18 Frank Holden gave evidence at the trial which can be briefly summarized as follows: the defendant and Tippett were at his home on the night in question; they went out at some time in the late evening; they did not take his vehicle; he later received a phone call to pick them up from a location near the Tippett home; he picked them up and took them back to his place; the defendant then borrowed Holden's car to pick up his girlfriend; and the following day Holden drove the defendant to pick up the red Commodore.

19 During cross-examination evidence directly inconsistent with his evidence in chief was elicited from Holden. Holden agreed that Tippett was with him while he watched a movie that started at 9:30 pm and did not finish until midnight; and Holden agreed that the defendant did not leave his home until 10:45 pm when he left in Holden's vehicle. 9

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