BTH v Tasmania - [2021] TASCCA 14

[2021] TASCCA 14

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	BTH v Tasmania [2021] TASCCA 14
PARTIES:	B T H
v
STATE OF TASMANIA
FILE NO:	808/2021
DELIVERED ON:	10 December 2021
DELIVERED AT:	Hobart
HEARING DATE:	25 August 2021
JUDGMENT OF:	Estcourt J, Geason J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Whether substantial miscarriage of justice in that the applicant was deprived of a fair trial because of the

incompetence of his counsel – Applicant found guilty of rape – Strong case against the applicant at trial – Defence case one of consensual sexual intercourse – Alleged incompetence as to failure to adduce
evidence to support the applicant's contested evidence that his complainant wife had a vindictive motive
to lie about consent – Conduct of counsel not found to constitute a material irregularity or a material
irregularity that affected the trial outcome – No miscarriage of justice – Appeal dismissed.

JAGD v Tasmania [2021] TASCCA 16; Crampton v The Queen [2000] HCA 60, 206 CLR 161; Nudd v The
Queen [2006] HCA 9, 162 A Crim R 301; TKJW v The Queen [2002] HCA 46, 212 CLR 124, referred to.

Aust Dig Criminal Law [3515]

REPRESENTATION:

Counsel:

Applicant: C Gunson SC, A Kendall
Respondent: D Coates SC, T Smith

Solicitors:

Applicant: Phillips Taglieri
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 14
Number of paragraphs:	69

Serial No 14/2021 File No 808/2021

B T H v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J GEASON J MARTIN AJ 10 December 2021
Order of the Court:
Appeal dismissed.

Serial No 14/2021 File No 808/2021

B T H v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 10 December 2021
The background

1   The applicant seeks leave to appeal against his conviction for vaginally raping his wife on
Mother's Day 2019.
2             The basis of his application is that the acknowledged act of sexual intercourse was consensual and his trial counsel was flagrantly incompetent in failing to adduce evidence to support his contested evidence that his wife had a vindictive motive to lie about the issue of consent.
3   The application has no merit and should be refused.
4            On 13 May 2019, the morning following Mother's Day, the applicant telephoned his sobbing wife and she recorded the following conversation which became Exhibit P2 on the trial:
"[Applicant] can't live like this.
Hello, what's goin' on?
[Complainant]
(Inaudible).
[Applicant]
[Complainant], go for it. Hang on, I'll turn this off so I can hear ya. You shouldn't um,
be too worried about it I promise you that, I, if I've scared you or anything I promise I
will not come near you at all, I won't even talk to you.·
[Complainant]
You've terrified me [applicant].
[Applicant]
Oh fuck off,…

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 BTH v Tasmania

Details

AGLC: BTH v Tasmania [2021] TASCCA 14
Case: [2021] TASCCA 14
Decision Date: 10 December 2021

CaseChat Overview and Summary

The applicant, BTH, appealed his conviction for rape to the Supreme Court of Tasmania. The appeal was brought on the grounds of alleged incompetence of his defence counsel, arguing that this incompetence resulted in a substantial miscarriage of justice and deprived him of a fair trial. The prosecution's case at trial was described as strong, while the defence's primary argument was that the sexual intercourse was consensual.

The central legal issue before the Full Court was whether the conduct of the applicant's trial counsel amounted to such incompetence as to occasion a substantial miscarriage of justice, thereby entitling the applicant to a new trial. This required the Court to assess whether the alleged failures of counsel were so significant that the trial could not be considered fair, notwithstanding the strength of the evidence against the applicant.

The Court considered the specific allegations of counsel's failures, including the failure to adduce certain evidence. It applied the principles governing appeals based on the incompetence of legal representation, which generally require a high threshold to be met. The Court would have had to determine if the alleged deficiencies in the defence strategy or conduct were so profound that they undermined the integrity of the trial process and prejudiced the applicant's ability to receive a fair hearing, considering the overall evidence presented.

Orders