AWK v Tasmania - [2024] TASCCA 5

[2024] TASCCA 5

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	AWK v Tasmania [2024] TASCCA 5
PARTIES:	AWK
v
STATE OF TASMANIA
FILE NO:	1516/2022
DELIVERED ON:	20 June 2024
DELIVERED AT:	Hobart
HEARING DATE:	16 April 2024
JUDGMENT OF:	Blow CJ, Wood J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Appeal dismissed – Charge of persistent sexual abuse of a child – Allegations of unlawful sexual acts on seven occasions – Acquittal of crime charged but convictions of rape on two occasions – Whether evidence lacking probative force.

Aust Dig Criminal Law [3476]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Charge of persistent sexual abuse of a child – Crown alleged unlawful sexual acts on seven occasions – Acquittal of crime charged but convicted of rape on two occasions.

Aust Dig Criminal Law [3478]

Cases Cited:
Browne v Dunn (1893) 6 R 67
Dansie v The Queen [2022] HCA 25, 274 CLR 651
M v The Queen [1994] HCA 63, 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
Pell v The Queen [2020] HCA 12, 268 CLR 123
R v Kirkman (1987) 44 SASR 591

R v Olbrich [1999] HCA 54, 199 CLR 270

REPRESENTATION:

Counsel:

Applicant: K Baumeler
Respondent: D Coates SC

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2024] TASCCA 5
Number of paragraphs:	319

Serial No 5/2024

File No CCA 1516/2022

AWK v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
MARTIN AJ

20 June 2024

Orders of the Court:

1            Leave to appeal granted.
2            Appeal dismissed.
2   No 5/2024

File No CCA 1516/2022

AWK v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

BLOW CJ
20 June 2024

1 I agree with the orders proposed by Wood J and with her Honour's reasons. I also agree with the additional comments of Martin AJ.
3 No 5/2024

File No CCA 1516/2022

AWK v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

WOOD J

20 June 2024

Introduction

2 This is an appeal against conviction after a trial by jury. Because the grounds of appeal involve exclusively questions of fact, the appellant seeks leave to appeal by virtue of s 401(1)(b) of the Criminal Code. I am satisfied that leave should be granted in order that the merits of the appeal can be considered.
3 The appellant was charged on indictment with a single count of persistent sexual abuse of a child or young person, contrary to s 125A(2) of the Criminal Code Act 1924. The complainant was the appellant's step-daughter and at the material time she resided with the appellant and her mother and siblings at Collinsvale. The particulars of the charge alleged that between 30 November 2013 and 13 April 2015, he…

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.

Continue reading AWK v Tasmania

Details

AGLC: AWK v Tasmania [2024] TASCCA 5
Case: [2024] TASCCA 5
Decision Date: 20 June 2024

CaseChat Overview and Summary

AWK appealed to the Full Court of the Supreme Court of Tasmania against his convictions for two counts of rape, following an acquittal on a charge of persistent sexual abuse of a child. The original trial involved allegations of unlawful sexual acts on seven occasions.

The central legal issue before the Full Court was whether the verdicts of guilt on the two counts of rape were unreasonable or unsupportable having regard to the evidence presented at trial. This required the Court to assess the probative force of the evidence upon which the jury had relied to reach its convictions.

The Court considered the evidence in detail, including the complainant's testimony and any corroborating evidence. It applied the principles governing appeals against verdicts on the grounds of unreasonableness, which involve a careful examination of whether the jury, acting reasonably, could have found the essential elements of the offence proven beyond reasonable doubt. The Court found that the evidence, when viewed in its totality, was capable of supporting the jury's findings of guilt on the two counts of rape.

The appeal was accordingly dismissed.

Orders