Braslin v The Queen - [2000] TASSC 133

[2000] TASSC 133

CITATION: Braslin v R [2000] TASSC 133

PARTIES:  BRASLIN, Leslie Raymond
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 137/1999
DELIVERED ON:  28 September 2000
DELIVERED AT:  Hobart
HEARING DATES:  30, 31 August 2000
JUDGMENT OF:  Cox CJ, Crawford and Blow JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Conduct of legal practitioners - Conduct of defence counsel - Evidence not adduced and questions not asked.

Criminal Code 1924 (Tas), s402(1).
R v Birks (1990) 19 NSWLR 677; Philpott v R A31/1996; Blake v R 29/1997, followed.
Aust Dig Criminal Law [999]

REPRESENTATION:

Counsel:
             Appellant:  J E Green
             Respondent:  T J Ellis
Solicitors:
             Appellant:  John Green
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 133
Number of Paragraphs: 24

Serial No 133/2000
File No CCA 137/1999

LESLIE RAYMOND BRASLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
BLOW J
28 September 2000

Order of the Court

Appeal dismissed.

Serial No 133/2000
File No CCA 137/1999

LESLIE RAYMOND BRASLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
28 September 2000

I have had the advantage of reading the Reasons for Judgment prepared by Blow J in respect of this appeal. In substance they reflect the views which led me to join in the order dismissing the appeal at the conclusion of the submissions of counsel for the appellant.
File No CCA 137/1999

LESLIE RAYMOND BRASLIN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  28 September 2000

I respectfully agree with the reasons for judgment of Blow J. There is nothing I wish to add.
File No CCA 137/1999

LESLIE RAYMOND BRASLIN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
28 September 2000

The appellant was tried together with his father and his son on a number of charges that arose out of an incident that occurred in the early hours of the morning on 3 February 1999. He was convicted as an abettor on three counts of aggravated assault. He was also convicted on one count of assault. He was acquitted of other charges. He appealed against his four convictions. On 31 August 2000, we dismissed his appeal and said that we would publish our reasons at a later date. These are my reasons for joining in the dismissal of the appeal.

Background

At the time in question, the appellant was a farmer. Some of his sheep were missing. He intercepted a vehicle being driven by one Steven Ransley, who was towing a trailer containing the missing sheep along a road at Tunnack, accompanied by his sons Michael and Aaron. There was evidence that Mr Ransley was taking the sheep to a municipal pound. The Crown case was that, at the time of the interception, the appellant was armed with a baseball bat or similar implement,…

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 The Queen

Details

AGLC: Braslin v The Queen [2000] TASSC 133
Case: [2000] TASSC 133
Decision Date: 28 September 2000

CaseChat Overview and Summary

Leslie Raymond Braslin appealed against his convictions for four counts arising from an incident involving the recovery of stolen sheep. The appeal was dismissed by the Court of Criminal Appeal of Tasmania. The appellant argued that his trial counsel had been ineffective, resulting in a miscarriage of justice. The Court examined several specific allegations of ineffective assistance, including the failure to call certain witnesses and to challenge certain evidence. The Court found that the trial counsel's decisions did not amount to a miscarriage of justice and that the appellant had received a fair trial. The Court also considered the appellant's argument that the trial judge's instructions to the jury on the concept of abetting were misleading. The Court found that the trial judge had adequately explained the elements of abetting, and that there was no merit in this ground of appeal. Consequently, the appeal was dismissed, and the original convictions were upheld.

Orders