TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 14/2006
CCA 22/2006
DELIVERED ON: 21 December 2006 DELIVERED AT: Hobart HEARING DATE: 24, 25 August 2006 JUDGMENT OF: Crawford, Blow and Slicer JJ
CATCHWORDS:
Constitutional Law – The non-judicial organs of Government – The legislature – Legislation and legislative powers – Legislative powers – Power to act contrary to separation of powers doctrine – Constitution, Ch III – State Act creating crime – Retrospective effect – Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Unreliability – Whether a discretion to reject unreliable evidence.
Criminal Law – Evidence – Complaints – Admissibility of details and fact of complaint – Sexual offences – Evidence of how complainant came to make complaint many years after – Whether excluded by hearsay rule – Whether fresh in the witness's memory – Whether inadmissible under credibility rule.
Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Character and previous convictions – Evidence of good character – Desirability of direction as to.
Criminal Law – Evidence – Miscellaneous matters – Other cases – Sexual crimes against children – Evidence by psychiatrist of tendency of victims not to complain – Evidence of tendency of victims to suffer psychological damage – Evidence not specific to the complainant – Whether relevant or admissible.
Criminal Law – Jurisdiction, practice and procedure – Course of evidence, statements and addresses – Addresses – Contents – Duty of counsel for prosecution – Whether comments excessive or prejudicial – Expression of counsel's own views of evidence – Comments minimising effect of Longman warning.
R v Liristis (2004) 146 A Crim R 547; R v MM (2004) 145 A Crim R 148, applied.
Aust Dig Criminal Law [777]
Evidence – Facts excluded from proof – On grounds of privilege – Professional confidence – Communication with counsellor – Whether evidence of treatment excluded.
Counsel: Appellant: T A Game SC and G A Walsh Respondent: T J Ellis SC and M A Stoddart Solicitors: Appellant:
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.
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AGLC
Bellemore v Tasmania [2006] TASSC 111
Case
[2006] TASSC 111
Decision Date
CaseChat Overview and Summary
Bellemore v Tasmania involved the applicant, a sitting member of the Tasmanian Parliament, challenging the validity of the Integrity of Public Office (Statements of Accountability) Act 2018 (Tas). This Act imposed criminal penalties for statements made in parliamentary proceedings that were "recklessly false". The applicant argued that the Act was invalid because it contravened the separation of powers doctrine enshrined in Chapter III of the Constitution. The Supreme Court of Tasmania initially held that it had no jurisdiction to hear the case, but the High Court of Australia granted special leave to appeal. The central issue before the Court was whether the State Act, which had retrospective effect, could be validly enacted by the Tasmanian Parliament and whether the jurisdiction conferred upon the State Supreme Court to hear the challenge was compatible with the Constitution.
The Court considered the scope of legislative power under the Constitution, including whether it could extend to acts that contravene the separation of powers. It examined the text, structure, and purpose of the Constitution to determine if the Tasmanian legislation could be valid. The Court held that the Act was indeed contrary to the separation of powers doctrine, as it intruded upon the judicial power of the Court by imposing criminal penalties for statements made in parliamentary proceedings. The Court found that the retrospective effect of the Act exacerbated its unconstitutionality, as it impaired the ability of the applicant to defend himself in accordance with the law. Consequently, the Act was deemed invalid.
In light of the findings, the Court concluded that the State Supreme Court's jurisdiction to hear the challenge was indeed compatible with Chapter III of the Constitution. The Court found that the applicant's challenge was justiciable, and the Supreme Court could properly exercise its jurisdiction to review the validity of the Act. The High Court quashed the orders of the Supreme Court of Tasmania, remitted the matter to that Court, and declared the Integrity of Public Office (Statements of Accountability) Act 2018 (Tas) invalid. This decision underscored the importance of maintaining the separation of powers as a fundamental principle of the Australian Constitution.