TASSC A8/1987
CITATION: Bohdal v The Queen [1987] TASSC 20; A8/1987
PARTIES: BOHDAL, R K
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 69/86
DELIVERED ON: 13 March 1987
DELIVERED AT: Hobart
HEARING DATE:
JUDGMENT OF: Green CJ, Nettlefold and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A8/1987
Number of paragraphs: 42
Serial No A8/1987
File No CCA 69/1986
BOHDAL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
NETTLEFOLD J
WRIGHT J (dissenting)
13 March 1987
Orders of the Court:
Appeal allowed.
Convictions quashed.
That there be a new trial of the indictment.
Serial No A8/1987
File No CCA 69/1986
R K BOHDAL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
13 March 1987
This is an appeal and an application for leave to appeal against the appellant’s conviction on 20 counts of burglary and 15 counts of stealing.
The grounds of appeal and the relevant passages from the transcript appear in the reasons for judgment of Wright J, and I do not need to repeat them.
Sergeant Warren’s remark was part of an answer which was only faintly responsive to the question which preceded it and was a remark from which the jury could have inferred that the appellant had on previous occasions been suspected of committing crimes and possibly, bearing in mind the previous questions and answers, it was also a remark from which the jury could have inferred that on previous occasions the appellant had confessed to committing crimes.
Senior Constable Speer‘s remark was made gratuitously in the course of a statement which itself may be regarded as having been volunteered rather than given as an answer to a question and was capable of being construed as a suggestion that the appellant had prior convictions.
The statements made by these two witnesses were inadmissible, prejudicial and especially material in this case in the light of the fact that the appellant gave evidence that the confessional material attributed to him had been fabricated.
Without more, the foregoing would be capable of sustaining a conclusion that a miscarriage of justice occurred. However, there are strong countervailing considerations. Counsel for the accused expressly declined to ask the trial judge to discharge the jury and as McInerney J observed in R. v Sarek [1982] VR 971 at 982 and 983:
“Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial: see, for example R. v James McCall, supra; R. v McIntyre, [1965] VR 593, at pp 595–7, per Pape, J; R. v Jeffrey, [1967] VR 467 at pp 469 and 474,…
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- AGLC
- Bohdal v the Queen [1987] TASSC 20
- Case
- [1987] TASSC 20
- Decision Date
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