Wurramara v Blackwell

• Jurisdiction: Northern Territory
• Judge: Kelly J
• Judgment Date: 14 December 2018
• Neutral Citation: [2018] NTSC 89
• Docket Number: FILE NO: LCA 46 of 2018 (21811678)
• Court: Supreme Court
• Date: 14 December 2018

[2018] NTSC 89

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment Of:

Kelly J

FILE NO: LCA 46 of 2018 (21811678)

Between:

Jadelen Wurramara

Appellant

and

Owen Blackwell

Respondent

REPRESENTATION:

Counsel:

Appellant: G Chipkin

Respondent: H Riley

Avopilang (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466, Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 107, Coombes v Roads and Traffic Authority [2006] NSWCA 229, Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588, Hurpurshad v Sheo Dyal LR 3 Ind App, 259, John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 Qd R 302, Jones v The Queen [1997] HCA 56; 191 CLR 439, Libke v The Queen [2007] HCA 30, 230 CLR 559, M v The Queen [1994] HCA 63; (1994) 181 CLR 48, Meethun Bebee v Busheer Khan 11 Moo Ind App, 21, McKay v Commissioner of Main Roads [2013] WASCA 13, Musico v Davenport [2003] NSWSC 97, Niehus v The Queen [2018] NTCCA 10, Owens v Repatriation Commission (1995) 59 FCR 559, Properjohn v Gaughan [1998] ACTSC 26, Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering And Infrastructure Pty Ltd [2014] WASC 40, applied

Criminal Code, s 218(2)

Evidence (National Uniform Legislation) Act, s 144(1), 144(4)

Youth Justice Act, s 144(1), s 144(3)

CRIMINAL LAW — Appeal against finding of guilt of unlawful use of a motor vehicle — Whether finding of guilt unsafe or unsatisfactory — Inappropriate judicial notice taken of kinds of cars driven by boys in Angurugu — requirements for judicial notice in Evidence (National Uniform Legislation) Act, s 144(1) not met — Procedural requirements in s 144(4) not complied with — Sufficient evidence in the form of DNA on a cigarette butt found in the car on which the judge could be satisfied beyond reasonable doubt that appellant was present in the stolen vehicle — Vehicle being driven erratically and then rolled in a manner consistent with unlawful use and inconsistent with lawful use — Occupants ran from the rolled vehicle — Sufficient evidence on which the judge could be satisfied beyond reasonable doubt that occupants knew the vehicle had been stolen — Whether the appellant knew the car had been stolen when he was present in the car — Window of 12 hours for commission of offence — No evidence of when appellant was present in the car — Judge must have entertained a doubt on the whole of the evidence — Appeal allowed

REASONS FOR JUDGMENT

(Delivered 14 December 2018)

1 On 19 July 2018, Jadelen Wurramara (‘the appellant’) was found guilty following a trial in the Youth Justice Court at Alyangula of a single count of aggravated unlawful use of a motor vehicle, contrary to s 218(2) of the Criminal Code.

2 The prosecution case was that at approximately 10.00 am on 17 December 2017, the appellant was present inside a stolen car that crashed and rolled onto its side near Angurugu community on Groote Eylandt. The car had been stolen sometime between the evening of 16 December and about 9.30 am on 17 December from the home of the complainant in Alyangula.

3 Police arrived shortly after the stolen vehicle had rolled onto its side and noticed a “big cloud of dust”. The officers saw four boys or young men climb out of the windows of the vehicle and run away. Police were about 200 metres away and they were unable to identify any of them. Nor could they provide descriptions of their appearance.

4 Police found two cigarette butts in the car near the backseat passenger foot-rail. DNA matching the appellant's DNA profile was found on one of the cigarette butts.

The appeal

5 An appeal to the Supreme Court lies from a finding of guilt, conviction, order or adjudication made by the Youth Justice Court. 1 The provisions of the Local Court (Criminal Procedure) Act relating to appeals from the Local Court apply, with the necessary changes. 2

6 The appellant appeals against the finding of guilt. The sole ground of appeal is that the conviction is unsafe and unsatisfactory.

Principles

7 The requirements for this ground of appeal are set out in M v The Queen. 3 The effect of that decision has been summarised by the majority in

Jones v The Queen 4 in the following terms: 5

The test for determining whether a verdict is unsafe or unsatisfactory

In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was “open to the jury” to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:

in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

The majority judges explained the application of the test as follows:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

Gaudron J agreed with the majority formulation of the test, as did Brennan J, although his Honour said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence … bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.

8 In Libke v The Queen 6 Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

9 The same principles apply where the trial is conducted by a judge alone.

The trial

10 The evidence at the trial was very short. A police officer gave evidence that police had received calls that overnight two vehicles had been stolen and she and her partner were on their way to Angurugu to have a look and see if they could find them. Just as they were driving past the airport, they got two calls just to say that there were cars that had been stolen outside the community grounds. As they got into Angurugu Community, they turned right onto a main road and saw a car on its side. The police officer didn't see the car roll but it was obvious that it had just rolled. There was a big cloud of dust and she saw four boys jump out the windows and run off.

11 They inspected the car, found two cigarette butts in the backseat on the foot-rail. She seized those and put them in a seizure bag.

12 In cross-examination, the police officer agreed that there was a striped bag on the back seat of the car. She was also asked:

Now, I just wanted to clarify as well, you've said that four people ran from the car, and you said that you were about 200 metres away; you couldn't give any indication as to whether they looked older or younger?

She answered, “No.” 7

13 The owner of the car gave evidence. She identified the car from a photograph and confirmed that she was the owner. She said that on 17 November, 8 the police rang her and asked if she realised that her car had been stolen. She told them no, she wasn't aware of that, she thought it was parked in the driveway. She checked whether or not it was parked in the driveway and it wasn't. She had last seen the car on “the evening prior”. At that time there were no cigarette butts in the car. She and her husband do not smoke. She did not know the appellant. He would have had no reason to be in her car. She did not give anyone permission to use the car at that time.

14 In cross-examination, the complainant agreed that the car did not have any particular markings on it which associate it with a business. She said she thought it was a ‘95 model and it was in good condition. She was asked whether there was a striped shopping bag in the backseat and she said she could not recall whether there was or not. She also said, “We have a lot of camping items. There might have been some sort of minor loose items in the backseat”.

15 The DNA evidence was tendered by consent, as was the statement of the other police officer who was present. He said in his statement:

I saw 4 males exit the vehicle through the passenger rear and front windows, it was too far away to...