Attorney-General's Reference No 1 of 2002 - [2003] TASSC 25

[2003] TASSC 25

CITATION: Attorney-General's Reference No 1 of 2002 [2003] TASSC 25

PARTIES: ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 99/2002
DELIVERED ON:  6 May 2003
DELIVERED AT:  Hobart
HEARING DATES:  12 March 2003
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Evidence - Matters relating to proof - Prima facie case or case to answer - Generally - Whether on the evidence there was a case to answer.

Doney v R (1990) 171 CLR 207; May v O'Sullivan (1955) 92 CLR 654, applied.
R v Prasad (1979) 23 SASR 161, followed.
Aust Dig Criminal Law [442]

REPRESENTATION:

Counsel:
             Applicant:  T J Ellis SC
             Respondent:  R W Pearce
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Douglas & Collins

Judgment Number: [2003] TASSC 25
Number of Paragraphs: 37

Serial No 25/2003
File No CCA 99/2002

ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J (DISSENTING)
EVANS J
6 May 2003

Order of the Court

Question referred for determination:

"Was the learned trial judge wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"

Answer:

"Yes"

Serial No 25/2003
File No CCA 99/2002

ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2002

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
6 May 2003

The issue

Pursuant to the provisions of the Criminal Code, s388AA, the Attorney-General for the State of Tasmania has referred the following question to this Court for determination:

"Was the learned trial judge wrong in law in holding that the evidence was not sufficient to enable the jury to find that the accused was in possession of the stolen property?"

The trial

Nathan Henry John Riley ("the accused") was charged with receiving stolen property contrary to the Code, s258(1), in that at Newnham on or about 15 May 2001, he did receive or have in his possession stolen property, namely two Stihl chainsaws, a quantity of Richmond Football Club clothing, a number of compact discs, a toiletry bag, three travel bags and confectionery, knowing it to be stolen.

The proceedings at trial took an unusual course. After the accused had pleaded not guilty, counsel told his Honour that it was proposed to put before the jury some agreed facts and a short video recorded interview between the police and the accused. It was then proposed to seek a ruling in the absence of the jury as to whether:

· the Crown can lead evidence that within the preceding three years the accused had been convicted of aggravated burglary (2), burglary (1) and stealing (3); and
· there was a case for the accused to answer.

The learned trial judge acceded to counsel's proposal and the trial commenced before the jury. The following statement of agreed facts was given:

"… it is an agreed fact that…

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 Attorney-General's Reference No 1 of 2002 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: [2003] TASSC 25
Decision Date: 6 May 2003

CaseChat Overview and Summary

The Court of Criminal Appeal in Tasmania was asked to determine if the trial judge erred in law when he ruled that the evidence was insufficient for the jury to find that the accused, Nathan Henry John Riley, was in possession of stolen property. Riley had been charged with receiving stolen property, including two Stihl chainsaws, clothing, compact discs, and other items. The evidence included an agreed statement of facts and a video-recorded interview with Riley, where he admitted knowing the property was stolen. The trial judge ruled that the Crown could not present evidence of Riley's prior convictions and that Riley had no case to answer. The Court of Criminal Appeal found that the trial judge erred in concluding that the evidence was insufficient. The circumstances, including the stolen property being in a vehicle registered to Riley's girlfriend, Riley being the driver, and his acknowledgment of the property's stolen status, could have led a reasonable jury to infer that Riley was in possession of the stolen goods.

The Court of Criminal Appeal's decision addressed two main issues: the admissibility of evidence regarding Riley's prior convictions and whether there was a case for the jury to answer. The court concluded that the trial judge's ruling on the sufficiency of the evidence to prove possession was incorrect. The Court of Criminal Appeal found that the evidence was sufficient for the jury to conclude that Riley was in possession of the stolen property. The court did not address the issue of the admissibility of prior convictions as it was not part of the reference. The Court of Criminal Appeal affirmed that the trial judge was wrong in law to direct the jury that Riley had no case to answer.

Orders