A v State of Tasmania - [2010] TASCCA 17

[2010] TASCCA 17

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: A v State of Tasmania [2010] TASCCA 17

PARTIES:  A, B
  v
  STATE OF TASMANIA

FILE NO/S:  835/2009
DELIVERED ON:  28 October 2010
DELIVERED AT:  Hobart
HEARING DATE:  14 October 2010
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Miscarriage of justice.

R v Abou-Chabake [2004] NSWCCA 356, followed.
Aust Dig Criminal Law [3497-3506]

REPRESENTATION:

Counsel:
             Appellant:  S Cairns
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASCCA 17
Number of paragraphs: 23

Serial No 17/2010
File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J

TENNENT J
WOOD J
28 OCTOBER 2010

Order of the Court

Appeal dismissed.

Serial No 17/2010
File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
28 October 2010

The appellant appeals against his conviction on counts of indecent assault, aggravated sexual assault and rape, all of which convictions arise from one episode on a night in early 2005.

The foundation for the amended grounds of appeal advanced by the appellant is evidence that was not adduced in the course of his trial. He seeks to now put this evidence before the Court and argue that as it was not before the jury the verdict is unsafe and unsatisfactory and there has been a miscarriage of justice.

The provision that governs the receipt of further evidence by this Court is the Code, s409(1), which relevantly provides that the Court may receive evidence if "it thinks it necessary or expedient in the interests of justice". The quoted words are contained in similar provisions in other Australian jurisdictions, one of which is the Criminal Appeal Act 1912 (NSW), s12(1)(c). In R v Abou-Chabake (2004) 149 A Crim R 417, the Court of Criminal Appeal (NSW) dealt with the principles that govern its receipt of further evidence. The principles are equally applicable in this jurisdiction. In that case Kirby J, agreed with by Mason P and Levine J said the following, at par[63]:

"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at [61]-[64]; see also R v Sleiman [2003] NSWCCA 231 at [101]-[105]. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 at 674-675 by Mason J (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:
·First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at 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.

Keep reading for free

Create a free CaseChat account to read A v State of Tasmania and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] TASCCA 17
Decision Date: 28 October 2010

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal by A against the State of Tasmania. The appeal concerned the admission of fresh evidence on appeal in a criminal matter.

The central legal issue before the Court was whether the fresh evidence sought to be adduced by the appellant was admissible on appeal, and if so, whether its admission would demonstrate a miscarriage of justice. This required the Court to consider the established criteria for admitting fresh evidence on appeal, namely that it must be evidence that was not available at the time of the trial, that it must be credible and cogent, and that it must be likely to have affected the result of the trial.

The Court applied the principles governing the admission of fresh evidence on appeal, which require a high threshold to be met. The evidence must be demonstrably new, meaning it could not have been discovered with reasonable diligence prior to the trial. Furthermore, the evidence must be of such a nature that, if believed, it would have had a material impact on the jury's verdict. The Court carefully assessed the nature of the evidence tendered by the appellant against these established legal principles.

The Court ultimately dismissed the appeal, finding that the fresh evidence did not meet the necessary criteria for admission and therefore did not establish a miscarriage of justice.

Orders