Buck v Tasmania - [2022] TASCCA 6

[2022] TASCCA 6

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Buck v Tasmania [2022] TASCCA 6
PARTIES:	BUCK, Luke David
v
STATE OF TASMANIA
FILE NO:	CCA 2350/2020
DELIVERED ON:	28 April 2022
DELIVERED AT:	Hobart
HEARING DATE:	28 April 2022
JUDGMENT OF:	Estcourt J, Pearce J, Geason J
CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Misdirection or non-direction –Evidence of witnesses to an assault at odds with the accused's own evidence – A form of Liberato direction given – Further direction given in terms requested by defence counsel – Argued on appeal that the direction was incomplete and inadequate – Overwhelming evidence against the accused as to the single primary fact in issue – No material irregularity in the trial nor significant possibility that the asserted error may have affected the outcome of the trial – Direction to be considered within context of entire summing up – Liberato direction not required as a matter of law – Direction did not result in miscarriage of justice – Relevance of the "proviso" – Appeal dismissed by majority.

Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen [2019] HCA 48, 268 CLR 57; CAJ v Forsyth [2018] TASSC 17; Douglas v The Queen [2012] HCA 34, 290 ALR 699; Hofer v The Queen [2021] HCA 36, 95 ALJR 937; Tomlinson v The Queen [2022] NSWCCA 16 ; Handlen v The Queen [2011] HCA 51, 245 CLR 282;Weiss v The Queen [2005] 224 CLR 300; Cooper v The Queen [2012] 87 ALJR 32 ;Orreal v The Queen [2021] HCA 44, 395 ALR 630, referred to.

Aust Dig Criminal Law [3470]

REPRESENTATION:

Counsel:

Appellant: F Cangelosi
Respondent: D Coates SC

Solicitors:

Appellant: Logan & Partners
Respondent: Director of Public Prosecutions

Judgment Number:	[2022] TASCCA 6
Number of paragraphs:	63

Serial No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J GEASON J (Dissenting in part) 28 April 2022
Orders of the Court:
Appeal dismissed.

Serial No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 28 April 2022
The appeal

1 The appellant Luke David Buck, was convicted on 22 November 2019, following a trial on a charge of aggravated assault contrary to s 183 of the Criminal Code 1924 and s 115 the Firearms Act 1996.
2 Following amendments to the notice of appeal made at the commencement and conclusion of the hearing of the appeal the appellant appealed against his conviction on a miscarriage of justice basis on the following grounds:
"1 The trial of the appellant miscarried in that the learned trial judge erred in law in failing to direct the jury in accordance…

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 Buck v Tasmania

Details

AGLC: Buck v Tasmania [2022] TASCCA 6
Case: [2022] TASCCA 6
Decision Date: 28 April 2022

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Estcourt J, Pearce J, and Geason J, considered an appeal by the accused, Buck, against his conviction. The dispute centred on whether the trial judge's directions to the jury concerning the evidence of witnesses to an assault, which conflicted with the accused's own testimony, constituted a miscarriage of justice.

The primary legal issue before the appellate court was whether the trial judge's summing up, which included a direction in the nature of a *Liberato* direction and a further direction requested by the defence, was incomplete and inadequate, thereby leading to a miscarriage of justice. The court was required to assess whether the direction, when considered in the context of the entire summing up, was legally sound and whether there was a significant possibility that any asserted error affected the outcome of the trial.

The majority of the court reasoned that a *Liberato* direction was not a mandatory requirement in law. They found that the direction given, when viewed within the entirety of the summing up, was not erroneous. Given the overwhelming evidence against the accused on the central factual issue, the court concluded that there was no material irregularity in the trial and no significant possibility that the direction complained of had affected the outcome. Consequently, the appeal was dismissed.

Orders