Braslin v Tasmania - [2011] TASCCA 14

[2011] TASCCA 14

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Braslin v Tasmania [2011] TASCCA 14

PARTIES:  BRASLIN, Travis Lee
  v
  STATE OF TASMANIA

FILE NO/S:  244/2011
DELIVERED ON:  13 October 2011
DELIVERED AT:  Hobart
HEARING DATE:  15, 16 September 2011
JUDGMENT OF:  Crawford CJ, Evans and Blow JJ

CATCHWORDS:

Criminal Law – Evidence – Identification evidence – Warning advisable or required – Adequacy of warning – Generally – Special need for caution – Reasons for that need generally and in the circumstances.
Evidence Act 2001 (Tas), ss116, 165(2).
R v Clarke (1997) 97 A Crim R 414, followed.
Aust Dig Criminal Law [2948]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal allowed – Misdirection as to topic not covered in cross-examination.
Browne v Dunn (1893) 6 R 67, referred to.

Aust Dig Criminal Law [3490]

REPRESENTATION:

Counsel:
             Appellant:  J N Perks
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASCCA 14
Number of paragraphs: 56

Serial No 14/2011
File No 244/2011

TRAVIS LEE BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
13 October 2011

Orders of the Court (15 September 2011)

Appeal allowed.

Conviction quashed.

Appellant remanded to appear at a later date.

Bail granted.

Serial No 14/2011
File No 244/2011

TRAVIS LEE BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
13 October 2011

At the conclusion of the hearing of this appeal, we allowed it and quashed the appellant's conviction on a charge of arson. We said that we would publish our reasons later. These are those reasons.

The appellant was tried before Tennent J and a jury on a single count of arson, contrary to the Criminal Code, s268. It was alleged that at Gagebrook on or about 2 August 2007 he unlawfully set fire to a house at 38 Deak Street, the property of "Housing Tasmania".

There was indisputable evidence that the house at 38 Deak Street was destroyed by fire on the morning of 2 August 2007. There was evidence from which the jury could readily infer that the fire was deliberately lit. The evidence suggesting that the appellant lit the fire was entirely circumstantial. He denied lighting it and advanced an alibi defence.

The evidence relied on by the Crown to prove that the appellant lit the fire came from a number of witnesses. The principal witness was the appellant's former partner, Ms Rainey. She was the occupant of the house in question. She gave evidence that the appellant spent the night before the fire at that house, sleeping in the lounge room; that she left the house at about 10.20 to 10.30am; that the appellant was then still asleep in the lounge room, or at least had his eyes shut; that she forgot her…

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 Braslin v Tasmania

Details

AGLC: Braslin v Tasmania [2011] TASCCA 14
Case: [2011] TASCCA 14
Decision Date: 13 October 2011

CaseChat Overview and Summary

Braslin appealed his conviction for aggravated robbery in the Supreme Court of Tasmania. The appeal concerned the adequacy of the warning given to the jury regarding the unreliability of identification evidence.

The central legal issue before the Full Court was whether the trial judge had provided a sufficient warning to the jury concerning the dangers of relying on identification evidence, particularly in circumstances where the identification was made by a single witness and was not corroborated by other evidence. The Court also considered whether the absence of specific directions on certain aspects of the identification evidence, which were not explored in cross-examination, constituted a material misdirection.

The Full Court held that the warning given by the trial judge was inadequate. Applying established principles regarding the special need for caution when dealing with identification evidence, the Court found that the warning did not sufficiently impress upon the jury the potential for error inherent in such evidence. The Court reasoned that the identification was a crucial element of the prosecution's case and that the jury needed to be more fully apprised of the factors that could affect its reliability. The failure to provide a more comprehensive warning, especially concerning aspects not challenged in cross-examination, was considered a material misdirection.

Consequently, the appeal was allowed, and the conviction was quashed. The appellant was remanded to appear at a later date, and bail was granted.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction quashed.

3. Appellant remanded to appear at a later date.

4. Bail granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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