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Crosswell v Tasmania

Crosswell v Tasmania

Case [2015] TASCCA 14 16 June 2015

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[2015] TASCCA 14

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

CITATION: Crosswell v Tasmania [2015] TASCCA 14

PARTIES:  CROSSWELL, Derek Michael
  v
  STATE OF TASMANIA

FILE NO  932/2014
DELIVERED ON:  16 June 2015
DELIVERED AT:  Hobart
HEARING DATE:  26 May 2015
JUDGMENT OF:  Porter, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Procedure – Juries – Discharge and excusing from attendance – Prejudice to accused – Evidence of police witness that he knew and recognised accused – No miscarriage of justice.

Crofts v The Queen (1996) 186 CLR 427, applied.
Aust Dig Criminal Law [3121]

REPRESENTATION:

Counsel:
             Appellant:  G Barns
             Respondent:  L Mason
Solicitors:
             Appellant:  Leonard Fernandez
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 14
Number of paragraphs: 26

Serial No 14/2015
File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
WOOD J
PEARCE J
16 June 2015

Order of the Court

Appeal dismissed.

Serial No 14/2015
File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
16 June 2015

I agree with Pearce J.

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
16 June 2015

I agree that the appeal should be dismissed for the reasons given by Pearce J.

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
16 June 2015

At about 5am on Saturday 25 May 2013, the York Hotel at Granton was broken into and robbed. The appellant, Derek Michael Crosswell, was found guilty by a jury of aggravated burglary and aggravated armed robbery. Two other men with whom Mr Crosswell was jointly charged, David Coles and Jay Bradford, were also found guilty. The trial was conducted before Tennent J. This is Mr Crosswell's appeal against his conviction. Only one ground is pursued. It asserts a miscarriage of justice as a result of a ruling made by her Honour in the course of the trial not to discharge the jury. The appellant claims that the jury should have been discharged after a police officer gave evidence that he knew the man he saw at 610 Main Road, Granton, which other evidence established was near the robbery and just after it was committed, was "Derek Crosswell". The appellant contends that the jury should have been discharged because the evidence was prejudicial, such prejudice arising from the risk that, because he was known by a police officer, the jury would impermissibly reason that the appellant was a person of bad character or likely to commit criminal offences.
For the following reasons the ground fails and the appeal should be dismissed.

The issue at trial

The issue at trial was whether it was the three accused who were responsible for the robbery. It was the State's case that Mr Bradford drove the appellant and…

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 Crosswell v Tasmania

Details

AGLC: Crosswell v Tasmania [2015] TASCCA 14
Case: [2015] TASCCA 14
Decision Date: 16 June 2015

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal by the accused, Crosswell, against his conviction. The dispute concerned the potential prejudice to the accused arising from evidence given by a police witness who stated that he knew and recognised the accused.

The central legal issue before the Full Court was whether the admission of this evidence, which the appellant argued was prejudicial, resulted in a miscarriage of justice. The court was required to determine if the trial judge had erred in allowing the evidence to be presented to the jury, and if so, whether that error had fatally undermined the fairness of the trial.

The Full Court reasoned that while the police witness's statement that he knew and recognised the accused might have been undesirable, it did not, in the context of the entire trial, occasion a miscarriage of justice. The court applied the principle that an appeal against conviction will only be allowed if a substantial wrong or miscarriage of justice has actually occurred. In this instance, the court found that the evidence, when viewed against the totality of the evidence presented at trial, did not have such a prejudicial effect as to render the conviction unsafe or unsatisfactory.

Consequently, the appeal was dismissed, and the conviction upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Crosswell v Tasmania [2015] TASCCA 14

Most Recent Citation

Pattison v Tasmania [2017] TASCCA 13

Cases citing this decision · 2 of 2 shown

Pattison v Tasmania
[2017] TASCCA 13 Para 10

…the principles which apply to criminal appeals generally: Maric v The Queen (1978) 20 ALR 513, per Gibbs J at 634-635; Crosswell v State of Tasmania [2015] TASCCA 14 at [13]-[14].…
Kelly v Director of Public Prosecutions (ACT)
[2015] ACTCA 55 Para 1

…ate court would have to examine the reasons given by the trial judge to make sure that the correct principles were kept in mind: Crosswell v Tasmania [2015] TASCCA 14 at [13]) but to determine whether, in order to secure a fair trial it was necessary to discharge the jury. See also R v Glennon (1992) 173 CLR 592.…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Halliday
[2018] QCA 279 Para 2

…65] VR 469 the evidence in issue was the inadvertent statement by a witness about an accused: "I met him at Bendigo Training Prison". In R v Halliday (2009) 23 VR 419 the jury was inadvertently shown a list of the appellant's prior convictions. The Court of Appeal concluded that the jury should have been discharged…
Walker v The Queen
[2014] VSCA 177 Para 2

…been discharged because the convictions were relevant to the accused's contention that he was a caring and non-violent person. In Walker v The Queen [2014] VSCA 177 a witness said of the accused, "That's correct, I was going out with her. In 1998 she went to gaol and she come (sic) out hating blokes." The Court o…
Tasmania v Chatters
[2013] TASSC 61 Para 5

…th cases involving the admissibility of identification evidence given by police officers from photographs or CCTV. One example is Tasmania v Chatters [2013] TASSC 61. A danger of unfair prejudice exists because foundational evidence of knowledge and familiarity through dealings with an accused as a police officer,…
Doddridge v Tasmania
[2010] TASCCA 18 Para 3

…dopted by Porter J in State of Tasmania v Howlett [2008] TASSC 38 and by Crawford CJ, with whom Tennent and Porter JJ agreed, in Doddridge v Tasmania [2010] TASCCA 18.…
R v Halliday
[2009] VSCA 195 Para 2

…R v Knape [1965] VR 469 the evidence in issue was the inadvertent statement by a witness about an accused: "I met him at Bendigo Training Prison". In R v Halliday (2009) 23 VR 419 the jury was inadvertently shown a list of the appellant's prior convictions. The Court of Appeal concluded that the jury should have been…
State of Tasmania v Howlett
[2008] TASSC 38 Para 3

…That passage was adopted by Porter J in State of Tasmania v Howlett [2008] TASSC 38 and by Crawford CJ, with whom Tennent and Porter JJ agreed, in Doddridge v Tasmania [2010] TASCCA 18.…
S v Tasmania
[2005] TASSC 110 Para 3

…These principles were applied by this Court in S v Tasmania [2005] TASSC 110. They have been applied countless times in intermediate courts of appeal throughout Australia and their correctness has not been doubted in any subsequent case by the High Court. Thus, in their application to this appeal, no rigid rule is…
R v Young
[2005] QCA 32 Para 1

…offences against the complainant, had committed further acts of sexual misconduct. The evidence was inadmissible and highly prejudicial. In R v Young [2005] QCA 32 the Queensland Court of Appeal dealt with an appeal by a man convicted of wounding and assault. During the trial a neighbour gave evidence that the v…
R v Alipek & Saltmarsh
[2004] VSC 58 Para 1

…ontend that the evidence was admissible and the appeal was argued on the basis that it was not. The appeal was dismissed. In R v Alipek and Saltmarsh [2004] VSC 58, Nettle J (as he then was) refused an application to discharge a jury after a police officer gave evidence, while being cross examined by defence cou…
Festa v The Queen
[2001] HCA 72 Para 2

…which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v B D (1997) 94 A Crim R 131 at 139; Festa v The Queen (2001) 208 CLR 593, per Gleeson CJ at [20] and McHugh J at [51]; KMJ per Evans J at [36]–[38]. In W v The Queen 16 Tas R 1 at 43, Blow J (as he then was) re…
Papakosmas v The Queen
[1999] HCA 37 Para 2

…Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted: Papakosmas v The Queen (1999) 196 CLR 297 at 325. The prejudice to which s 137 refers is not that the evidence tends to establish the State's case. It means prejudice which is unfair because there is a re…
Crofts v The Queen
[1996] HCA 22 Para 1

…of justice. The appellant's submission that there has been a miscarriage of justice is based on the decision of the High Court in Crofts v The Queen (1996) 186 CLR 427. That case authoritatively determined the test for the discharge of the jury in the following terms: "The question is whether in the circumstances ..…
Glennon v The Queen
[1994] HCA 7 Para 2

…n the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? Glennon v The Queen (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521."…
R v Glennon
[1992] HCA 16 Para 6

…oceeds and results in a conviction, it is for a court of criminal appeal to decide whether the accused has been deprived of a fair trial: R v Glennon (1992) 173 CLR 592 at 604. Thus, although this Court may assess her Honour's exercise of discretion in accordance with principles espoused in House v The King (1936) 55…
Markby v The Queen
[1978] HCA 29 Para 2

…at, but for the admission of the inadmissible evidence, the conviction was inevitable? Glennon v The Queen (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521."…
House v R
[1936] HCA 40 Para 6

…3 CLR 592 at 604. Thus, although this Court may assess her Honour's exercise of discretion in accordance with principles espoused in House v The King (1936) 55 CLR 499, it must decide whether the result of the refusal to discharge the jury occasioned a miscarriage of justice. It is not contended that her Honour erre…
House v The King
63 WN 176 Para 6

…Glennon (1992) 173 CLR 592 at 604. Thus, although this Court may assess her Honour's exercise of discretion in accordance with principles espoused in House v The King (1936) 55 CLR 499, it must decide whether the result of the refusal to discharge the jury occasioned a miscarriage of justice. It is not contended that her…

Legislation cited in this decision · 2

Evidence Act 2001 (TAS)
37 1 mention (from Para 4)
Juries Act 2003 (TAS)
41(1) 1 mention (from Para 4)