Bohdal v the Queen - [1987] TASSC 20

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,…

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 Bohdal v the Queen

Details

AGLC: Bohdal v the Queen [1987] TASSC 20
Case: [1987] TASSC 20
Decision Date: 13 March 1987

CaseChat Overview and Summary

In the case of Bohdal v The Queen, the appellant, Bohdal, appealed against his convictions on 20 counts of burglary and 15 counts of stealing. The central legal issues revolved around whether the trial judge erred in not discharging the jury and whether the jury's verdict constituted a miscarriage of justice due to prejudicial comments made by police witnesses and a potential communication of the judge's reprimand to the jury. The Court of Criminal Appeal considered the gravity of the breaches of trial rules and the implications for the fairness of the trial. While the court recognised the significant prejudicial impact of the comments, it also weighed the decision of the defence counsel not to request a discharge of the jury, which the court found to be a deliberate and informed decision. Ultimately, the court concluded that a miscarriage of justice had occurred, primarily due to the prejudicial remarks made by the police officers and the potential for a juror to overhear the judge's reprimand. The appeal was allowed, the convictions were quashed, and a new trial was ordered.

Orders