Annual Report 2012-2013 page 29

The way in which the law has developed is illustrated by the case of M. In that case the trial judge initially ruled that the child complainant in a sexual offence case was not competent to give unsworn evidence because he had answered “I don’t know” to the question “What do you understand by me telling you that it is important to tell the truth? What does that mean to you?”.

The Crown appealed against his Honour’s ruling and the Court of Appeal upheld the appeal, ruling that the trial judge’s consideration was irrelevant to the question of the complainant’s competence to give unsworn evidence.

McDougall

In a previous report the conviction of McDougall for the murders of Straun Bolas and Julie Tattersall was recorded. During the reporting period the Court of Appeal dismissed an appeal by McDougall against his conviction for Mr Bolas’s murder and his sentence. The Court of Appeal unanimously held that it was open to the trial judge to make the findings of fact that he did concerning the death of Mr Bolas and that he had correctly identified the law relevant to the issues raised at trial - in particular the law relevant to self defence.

Massey

The conviction of Rebecca Massey for the murder of Elizabeth Booshand has previously been reported. In the reporting period the Court of Appeal unanimously dismissed an appeal by Massey against her conviction. The appeal centred on directions given by the trial judge to the jury concerning the issue of self defence. The Court unanimously found that the trial judge had not misdirected the jury.

Massey is seeking special leave from the High Court to appeal against this decision.

Tate, Fusimalohi

In these two cases, the decisions for which were handed down on the same day, the Court of Appeal made significant observations in relation to sentences for the offence of burglary. This is an offence which is all too prevalent in the Territory, and in respect of which sentencing has been inconsistent.

Tate had pleaded guilty to four burglaries of domestic premises and associated thefts, the offences being committed within a short time of each other. The sentencing judge imposed a total sentence of six years imprisonment with a non parole period of four years. Tate appealed on the basis that the sentence was manifestly excessive. The Court of Appeal by majority rejected the appeal. The majority, in referring to a table of sentences in what were said to be similar cases furnished by the appellant noted:

We do not consider the table of sentencing decisions prepared by the appellant’s counsel establishes that the sentences imposed on the appellant are manifestly excessive. What the table does establish, as with the decisions referred to above, is that there is no single, correct sentence for offences of burglary. Sentencing is not a simple arithmetic process, but instead requires the sentencer to determine a sentence based upon an “instinctive synthesis” of the facts and circumstances relevant to the offences and offender: Markarian v The Queen (2006) 228 CLR 357. As such, there will always be a range of sentences that may legitimately be imposed for an offence of this type.